[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 4, 2006
No. 05-14948 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00086-CR-T-24-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ASPRILLA,
a.k.a. Jaime Moreno-Valencia,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 4, 2006)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Carlos Asprilla, a.k.a. Jaime Moreno-Valencia, appeals his 135-month
sentence for two drug charges. Asprilla contends that the district court erred by
denying his request for a mitigating role reduction pursuant to United States
Sentencing Guidelines § 3B1.2 (November 1, 2004). We AFFIRM.
I.
According to the Presentence Investigation Report (PSI), on February 20,
2005, Asprilla and three other men were aboard a speed boat carrying cocaine in
international waters when they were apprehended by the Coast Guard. Before
being stopped, the boat fled from the Coast Guard at high speed while the crew
threw bales of cocaine overboard. After disabling the vessel, the Coast Guard
boarded. The vessel was determined to be without nationality and therefore it and
its crew were subject to the jurisdiction of the United States. Asprilla and the other
crew members were taken into custody. The Coast Guard subsequently recovered
118 bales of cocaine weighing approximately 2,674 kilograms from the ocean.
In a two-count indictment, a grand jury charged Asprilla with: (1)
possession with intent to distribute five kilograms or more of cocaine while on
board a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. app. § 1903(a), (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii); and (2)
conspiracy to possess with intent to distribute five kilograms or more of cocaine
while on board a vessel subject to the jurisdiction of the United States, in violation
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of 46 U.S.C. app. § 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii). On May 16,
2005, Asprilla entered a guilty plea as to both counts.
Because the offense involved more than 150 kilograms of cocaine, the
probation officer assigned Asprilla a base offense level of 38 pursuant to U.S.S.G.
§ 2D1.1(c)(1). The probation officer applied a two-level “safety valve” reduction
pursuant to § 5C1.2, granted a two-level reduction for acceptance of responsibility
under § 3E1.1(a), and granted a one-level reduction for assisting the authorities
under § 3E1.1(a) and (b). The probation officer made no adjustment for Asprilla’s
role in the offense pursuant to § 3B1.2 and assigned a total offense level of 33.
Because Asprilla had no criminal history points, he was given a criminal history
category of I, resulting in a guideline range of 135 to 168 months.
Asprilla objected to the PSI for failure to include a mitigating role
adjustment under § 3B1.2 and reiterated his objection at the sentencing hearing.
The district court overruled Asprilla’s objection and sentenced him to concurrent
sentences of 135 months for each count.
II.
Asprilla argues that the district court clearly erred in failing to grant him a
downward adjustment for his role in the offense pursuant to § 3B1.2. A district
court may award a two- to four-level reduction to a defendant who played a
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“mitigating role” in the criminal offense charged. U.S.S.G. § 3B1.2. A defendant
who is “plainly among the least culpable of those involved in the conduct of a
group” is a minimal participant eligible for a four-level reduction. Id. § 3B1.2 cmt.
n.4. A defendant “who is less culpable than most other participants, but whose role
could not be described as minimal,” is a minor participant eligible for a two-level
reduction. Id. § 3B1.2 cmt. n.5. An intermediate reduction of three levels is also
available. Id. § 3B1.2.
A defendant seeking a mitigating role reduction bears the burden of proving
that he is entitled to the reduction by a preponderance of the evidence. United
States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc). The district
court’s determination of a defendant’s role in a criminal offense “is heavily
dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2 cmt. n.3(C).
Accordingly, we review that determination “only for clear error.” De Varon, 175
F.3d at 937. As long as the district court’s decision is supported by the record, “a
district court is not required to make any specified findings other than the ultimate
determination of the defendant’s role in the offense.” Id. at 939–40.
In De Varon, we established a two-part test for determining whether a
mitigating role reduction is appropriate. See id. at 940–45. The district court must
first measure the defendant’s role in the offense against the relevant conduct for
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which he has been held accountable. Id. at 940. “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. “[I]n many cases this method of analysis will be
dispositive.” Id. at 945.
The court then may compare the defendant’s culpability to that of other
participants in the offense. Id. However, the court should use other participants as
comparators “only to the extent that they are identifiable or discernable from the
evidence” and, then, “only those participants who were involved in the relevant
conduct attributed to the defendant.” Id. “The conduct of participants in any
larger criminal conspiracy is irrelevant.” Id.
Asprilla contends that he should have been granted a mitigating role
reduction for six reasons: (1) he had no financial interest in the cocaine found
aboard the speed boat; (2) he did not plan or organize the criminal enterprise; (3)
he did not know the scope or structure of the offense; (4) his role was only that of a
crew member—he had no decisionmaking authority; (5) he had no control over the
drugs and did not stand to benefit from the profits from their sale; and (6) he did
not possess a firearm during the offense.
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Those bald assertions are unavailing. Asprilla had the burden of offering
evidence from which the court could conclude either that his actual conduct was
different than the relevant conduct for which he was held accountable or that he
was less culpable than other crew members on the boat. See De Varon, 175 F.3d at
939, 940–45. He did not do so. In fact, Asprilla, through counsel, did not object to
the factual accuracy of the PSI; therefore, he is deemed to have admitted the facts
contained in it. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
No evidence in the PSI supports Asprilla’s contention that he played only a
mitigating role in the offense.
Even if we could consider the information which, according to Asprilla,
warrants a mitigating role reduction, we would not find clear error in the district
court’s refusal to grant a reduction based on the facts contained in the PSI.
Asprilla was one of only four men aboard a speed boat carrying a substantial
amount of cocaine. He participated in dumping cocaine overboard while the boat
fled from the Coast Guard. These facts are ample to support our conclusion under
the first prong of the De Varon analysis that Asprilla did not have a minor or
minimal role in the offenses with which he was charged. This is so regardless of
whether he was not the “mastermind” behind the conspiracy, had no financial
interest in or control over the drugs, and did not possess a firearm. Moreover, the
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facts of the PSI to which Asprilla admitted indicate that he was no less culpable
than the rest of the crew. Instead, the facts show that he was of average culpability,
and that is insufficient to support a finding that he was a minor or minimal
participant under the second prong of the De Varon analysis.
Accordingly, for the reasons stated above, we find that the district court did
not clearly err in denying Asprilla a mitigating role reduction pursuant to U.S.S.G.
§ 3B1.2. Accordingly, we affirm the district court’s sentence of Asprilla.
AFFIRMED.
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