[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12045 FEBRUARY 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00551-CR-T-27-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMAURY VILLADIEGO GARCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 14, 2006)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Amaury Villadiego Garcia appeals his 135-month sentence for conspiracy to
possess with the intent to distribute five kilograms or more of cocaine while aboard
a vessel subject to the jurisdiction of the United States and possession with the
intent to distribute five kilograms or more of cocaine while aboard a vessel subject
to the jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a), (g), and
(j), and 21 U.S.C. § 960(b)(1)(B)(ii). We AFFIRM.
I. BACKGROUND
Garcia, who had been a fisherman and boat driver in Colombia for twenty
years, was on a “go-fast” boat intercepted by United States Coast Guard officers.
During a pursuit by the officers, the crew jettisoned 58 bales from the boat which
were later determined to contain 1,450 kilograms of cocaine. Garcia and other
crew members told the officers that they were recruited to transport the cocaine by
an individual named “Pedro.” Garcia was paid approximately $1,957 for his
services on the “go-fast” boat. He pled guilty to both counts of the indictment
without entering into a plea agreement with the government.
A federal grand jury indicted Garcia for conspiracy to possess with the intent
to distribute five kilograms or more of cocaine while aboard a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a), (g), and (j),
and 21 U.S.C. § 960(b)(1)(B)(ii) (Count 1); and possession with the intent to
distribute five kilograms or more of cocaine while aboard a vessel subject to the
2
jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a) and (g), and
21 U.S.C. § 960(b)(1)(B)(ii) (Count 2). R1-8 at 1-2. The indictment alleged a total
of 1,450 kilograms of cocaine. Id. at 4.
The probation officer set Garcia’s base offense level at 38 pursuant to
U.S.S.G. § 2D1.1(c)(1). Garcia received a net three-level reduction for acceptance
of responsibility under § 3E1.1, resulting in a total offense level of 35. Garcia was
assessed no criminal history points, making his criminal history category I. His
guideline range was 168 to 210 months of imprisonment. Garcia objected that the
presentence investigation report did not contain (1) a reduction based on the
“safety valve” provision and (2) a minor-role reduction for his role in the offense.
At sentencing, Garcia’s counsel argued that he was entitled to a minor-role
reduction because (1) he had no interest in or control over the drugs, (2) he was not
an organizer or leader but a transporter, and (3) the factors in 18 U.S.C. § 3553(a)
militated in favor of granting a minor-role reduction. R2 at 4-6. The district judge
denied the minor-role reduction and found that Garcia was not held accountable for
conduct beyond his activities on the “go-fast” boat and that he was not less
culpable than his codefendants, also crew members of the “go-fast” boat. Id. at
10-12. The judge also noted the quantity of drugs as a consideration. Id. at 12.
The judge sustained Garcia’s objection regarding a safety-valve reduction and
3
recalculated his total offense level as 33 and his Sentencing Guidelines range as
135 to 168 months of imprisonment. Id. at 12-13. The district judge sentenced
Garcia to 135 months of imprisonment and three years of supervised release on
each count, to run concurrently. The judge noted that the sentenced imposed was
determined to be appropriate after consideration of the factors in § 3553(a). Id. at
16. On appeal, Garcia argues that his role in the offense was less significant than
that of the owners of the drugs and organizers of the drug trafficking, and he
asserts that he was only a crew member without special skills or knowledge.
II. DISCUSSION
While the Sentencing Guidelines are advisory after United States v. Booker,
543 U.S. 220, 125 S.Ct. 738 (2005), the district court must continue to consider
them when sentencing and must calculate a sentence under the Sentencing
Guidelines correctly. United States v. Crawford, 407 F.3d 1174, 1178-79 (11th
Cir. 2005). A sentencing court’s determination of a defendant’s role in an offense
constitutes a factual finding that is reviewed for clear error. United States v. De
Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). “The proponent of the
downward adjustment . . . always bears the burden of proving a mitigating role in
the offense by a preponderance of the evidence.” Id. at 939.
The Sentencing Guidelines permit a court to decrease a defendant’s offense
4
level by four levels if it finds that the defendant was a “minimal participant” or two
levels if it finds that the defendant was a “minor participant” in the criminal
activity. U.S.S.G. § 3B1.2. A minimal participant is one who is “plainly among
the least culpable of those involved in the conduct of a group,” U.S.S.G. § 3B1.2,
comment. (n.4), while a minor participant is one “who is less culpable than most
other participants, but whose role could not be described as minimal,” U.S.S.G.
§ 3B1.2, comment. (n.5).
The adjustment applies if the defendant proves by preponderance of the
evidence that he “play[ed] a part in committing the offense that makes him
substantially less culpable than the average participant.” U.S.S.G. § 3B1.2,
comment. (n.3(A)). The determination of whether to apply a role reduction is a
heavily fact-based inquiry, and a sentencing court, “in weighing the totality of the
circumstances, is not required to find, based solely on the defendant’s bare
assertion, that such a role adjustment is warranted.” U.S.S.G. § 3B1.2, comment.
(n.3(C)).
In determining whether a mitigating role adjustment is warranted, a district
judge first must evaluate “the defendant’s role against the relevant conduct for
which []he has been held accountable” at sentencing. De Varon, 175 F.3d at 940.
In looking at relevant conduct, “the district court must assess whether the
5
defendant is a minor or minimal participant in relation to the relevant conduct
attributed to the defendant in calculating [his] base offense level.” Id. at 941.
“Only if the defendant can establish that [he] played a relatively minor role in the
conduct for which [he] has already been held accountable – not a minor role in any
larger criminal conspiracy – should the district court grant a downward adjustment
for minor role in the offense.” Id. at 944. Although a defendant’s status as a drug
courier alone does not establish whether or not he is a minor participant, “when a
drug courier’s relevant conduct is limited to [his] own act of importation [or
transportation], a district court may legitimately conclude that the courier played an
important or essential role in the importation of those drugs.” Id. at 942-43.
Furthermore, in the drug-courier context, “the amount of drugs imported is a
material consideration in assessing a defendant’s role in [his] relevant conduct”
and, in some cases, could be dispositive. Id. at 943.
The district court evaluates a defendant’s role by comparing it to that of
other participants in his relevant conduct. Id. at 940. When measuring a
defendant’s conduct against other participants’ conduct, a district judge may
consider only those participants who are identifiable by the evidence and who were
involved in the relevant conduct for which the defendant was convicted. Id. at 944.
“The fact that a defendant’s role may be less than that of other participants engaged
6
in the relevant conduct may not be dispositive of [his] role in the offense, since it is
possible that none are minor or minimal participants.” Id. “[T]he district court
must determine that the defendant was less culpable than most other participants in
[his] relevant conduct.” Id.; see also, U.S.S.G. § 3B1.2, comment. (n.3(A)) (“This
section provides a range of adjustments for a defendant who plays a part in
committing the offense that makes him substantially less culpable than the average
participant.”).
The district judge did not clearly err in refusing to grant Garcia a minor-role
reduction. First, Garcia was held accountable for a large amount of drugs, and this
alone precludes him from receiving a minor-role adjustment. Second, because
Garcia’s relevant conduct was possessing with intent to distribute 1,450 kilograms
of cocaine, he must establish that he was a minor participant with respect to that
relevant conduct and cannot point to a broader criminal conspiracy. Finally,
Garcia’s relevant conduct is identical to his actual conduct. In the drug
transportation context, the district court is permitted to conclude, as it did here, that
Garcia played an important or essential role in the transportation of those drugs.
The second prong of De Varon further precludes a minor-role adjustment.
To the extent that Garcia argues that his role should be compared to others in a
larger conspiracy, his argument is meritless because other conspirators were not
7
discernible from the evidence and are not part of the relevant conduct for which
Garcia was convicted. The other participants in the relevant conduct were part of
the same conspiracy and all held accountable for the same amount of drugs. There
is nothing in the facts, to which Garcia did not object, to indicate that he was
substantially less culpable than most of his fellow crewmen. Therefore, the district
judge did not clearly err by denying Garcia a minor-role reduction.
III. CONCLUSION
Garcia appeals his 135-month sentence for conspiracy to possess with the
intent to distribute five kilograms or more of cocaine while aboard a vessel subject
to the jurisdiction of the United States and possession with the intent to distribute
five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction
of the United States, in violation of 46 U.S.C. § 1903(a), (g), and (j), and 21 U.S.C.
§ 960(b)(1)(B)(ii). Because the record supports a finding that Garcia neither
played a mitigating role in relation to the relevant conduct attributed to him nor
was he substantially less culpable than most of the other participants in the relevant
conduct, the district judge did not clearly err by denying him a minor-role
reduction. Accordingly, his sentence is AFFIRMED.
8