[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 13, 2006
No. 05-15280 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00335-CR-T-17-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MEJIA ESCALONA-MARTINEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 13, 2006)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Mejia Escalona-Martinez appeals his concurrent 135-month sentences for
conspiracy to possess and possession with intent to distribute five or more
kilograms of cocaine while aboard a vessel subject to United States jurisdiction, in
violation of 46 U.S.C. app. §§ 1903(a), (g), and (j). On appeal, he argues that the
district court erred by denying him a minor-role reduction. Upon review of the
record and consideration of the parties’ briefs, we affirm.
“We review a district court’s determination of whether a defendant qualifies
for an adjustment under the sentencing guidelines for clear error.” United States v.
Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002). Section 3B1.2(b) of the U.S.
Sentencing Guidelines Manual provides for a two-level reduction to a defendant’s
offense level if he was a minor participant in the offense. The guidelines further
define a minor participant as one “who is less culpable than most other
participants, but whose role could not be described as minimal.” Id. cmt. n.5. “[A]
defendant who is convicted of a drug trafficking offense, whose role in that offense
was limited to transporting or storing drugs and who is accountable under [§
1B]1.3 only for the quantity of drugs the defendant personally transported or stored
is not precluded from consideration . . . under this guideline.” Id., cmt. n.3(A).
“The defendant bears the burden of proving his minor role by a preponderance of
the evidence.” Boyd, 291 F.3d at 1277.
“[I]n determining a defendant’s role in the offense, a district court [first]
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must measure the defendant’s role against the relevant conduct attributed to [him]
in calculating [his] base offense level.” United States v. De Varon, 175 F.3d 930,
943-44 (11th Cir. 1999) (en banc). Next, “the district court may also measure the
defendant’s culpability in comparison to that of other participants in the relevant
conduct.” Id. at 944.
Here, the district court did not clearly err by denying Escalona-Martinez a
minor-role reduction. Applying the first part of De Varon, the relevant conduct for
which he was held accountable was the weight of the bales discarded from the go-
fast boat, determined to weigh 320 kilograms. Therefore, his actual and relevant
conduct were the same. “[W]hen a drug courier’s relevant conduct is limited to
[his] own act of importation, 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.
With respect to the second part of the De Varon analysis, there is insufficient
evidence to show that Escalona-Martinez was a minor participant in comparison to
others. In determining whether a defendant was less culpable than others, “the
district court may consider only those participants who were involved in the
relevant conduct attributed to the defendant,” as “[t]he conduct of participants in
any larger criminal conspiracy is irrelevant.” Id. at 944. Here, the only persons
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identifiable from the evidence are Escalona-Martinez and the seven other crew
members of the vessel. Escalona-Martinez claims that he was a helmsman whose
role was limited to taking turns piloting the vessel. However, neither the
presentence investigation report nor the sentencing hearing reveal any evidence of
each crew member’s role, and Escalona-Martinez failed to show that his
responsibilities aboard the vessel were less vital to the enterprise than those of any
other crew members. Therefore, the district court did not clearly err by refusing to
grant a minor-role reduction.
AFFIRMED.
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