[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 1, 2006
No. 05-10882 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00437-CR-T-26TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL VIVAS-RENGEFO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 1, 2006)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Miguel Vivas-Rengefo appeals his 135-month sentence, imposed after he
pled guilty to possession of cocaine with intent to distribute, and conspiracy to
distribute 5 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). On appeal, Vivas-Rengefo, who was charged
with three codefendants, Paulino Jiminez-Biojo, Christian Balereso, and Alexandre
Anchico, argues the district court erred by refusing to grant him a two-level,
minor-role reduction, pursuant to U.S.S.G. § 3B1.2. He asserts his participation in
the offense was minor when compared to the owners of the cocaine because he
only transported it and did not have an equity interest. He also urges that because
he was less culpable than the scheme’s organizers and recruiters, he was entitled to
the reduction and the district court erroneously based his sentence on how the court
previously had handled similar cases.
We review a district court’s factual findings regarding a defendant’s role in
the offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). “So long as the basis of the trial court’s decision is supported by
the record and does not involve a misapplication of a rule of law, we believe that it
will be rare for an appellate court to conclude that the sentencing court’s
determination is clearly erroneous.” De Varon, 175 F.3d at 945.
The Guidelines provide for a two-level decrease where the defendant was a
minor participant in any criminal activity. See U.S.S.G. § 3B1.2(b). A minor
2
participant is defined as “any participant 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.3). To determine whether the adjustment applies, a district court first
should measure the defendant’s role against the conduct for which he has been held
accountable. See De Varon, 175 F.3d at 934. With regard to drug couriers, this
Court has indicated that its holding in De Varon “[did] not create a presumption
that drug couriers are never minor or minimal participants, any more than that they
are always minor or minimal,” but “[r]ather . . . [established] only that the district
court must assess all of the facts probative of the defendant’s role in [his] relevant
conduct in evaluating the defendant’s role in the offense.” United States v. Boyd,
291 F.3d 1274, 1277 (11th Cir. 2002). In drug courier cases, “the amount of drugs
imported is a material consideration in assessing a defendant’s role in [his] relevant
conduct” and “may be dispositive -- in and of itself -- in the extreme case.” De
Varon, 175 F.3d at 943.
Second, where there is sufficient evidence, a court also may measure the
defendant’s conduct against that of other participants in the criminal scheme
attributed to the defendant. See id. In making this inquiry, a district court should
look to other participants only to the extent that they (1) are identifiable or
discernable from the evidence, and (2) were involved in the relevant conduct
3
attributed to the defendant. See id. at 944 (stating that “[t]he conduct of
participants in any larger criminal conspiracy is irrelevant”). Moreover, “the
amount of drugs imported is a material consideration in assessing a defendant’s
role in [his] relevant conduct.” Id. at 943.
Here, the relevant conduct attributed to Vivas-Rengefo at sentencing was the
importation and possession of approximately 3,588 pounds of cocaine, which
represented the amount of cocaine found on the vessel when it was intercepted
with Vivas-Rengefo onboard. Indeed, Vivas-Rengefo admitted at his plea colloquy
that he was found on a vessel with 3,588 pounds of cocaine, and that he knowingly
and intentionally possessed the cocaine and intended to distribute it. These
activities demonstrate that he participated in transporting the drugs, and that his
role was not minor in the relevant conduct of possession and conspiracy to possess
with intent to distribute over five kilograms of cocaine. See De Varon, 175 F.3d at
944. Therefore, the first principle of De Varon precludes a minor role reduction.1
1
Given Vivas-Renfego’s failure to carry his burden on the first prong, we need not reach
the second De Varon prong, but we nevertheless observe that this second principle would also defeat
the award of a minor-role reduction here. With the possible exception of co-conspirator Jiminez-
Biojo, who claimed that he was the boat’s captain, Vivas- Vivas-Rengefo’s conduct was identical
to that of his codefendants. The conduct of others who were involved in the overall scheme of
transporting and selling cocaine -- the organizers or recruiters or those with an equity interest in the
cocaine -- is irrelevant to the assessment of Vivas-Rengefo’s role, as he is not charged with a larger
conspiracy to import or distribute drugs, and, in any event, these individuals are not identifiable
from the evidence. See DeVaron, 175 F.3d at 944.
4
“So long as the basis of the trial court’s decision is supported by the record
and does not involve a misapplication of a rule of law, we believe that it will be
rare for an appellate court to conclude that the sentencing court’s determination is
clearly erroneous.” Id. at 945 (emphasis in original). Here, we cannot find clear
error in the district court’s conclusion that Vivas-Rengefo played an integral role in
the charged offenses and, accordingly, was not entitled to a minor-role reduction,
pursuant to our decision in De Varon.
AFFIRMED.
5