[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14503 June 30, 2006
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 05-00028-CR-T-17TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXIS BUSH TAPIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 30, 2006)
Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Defendant-Appellant Alexis Bush Tapia appeals the 135-month sentence
imposed following his plea of guilty to drug trafficking offenses. No reversible
error has been shown; we affirm.
Defendant was in a 38-foot speed boat with three other crew members in
international waters in the Carribean Sea when the speed boat was spotted by the
United States Coast Guard. As the Coast Guard approached, Defendant and the
other crew members threw bales of cocaine into the water. The Coast Guard
boarded the boat and apprehended the crew; 90 bales -- containing 2,225
kilograms -- of cocaine were recovered.
On appeal Defendant raises a single issue: whether the district court clearly
erred when it denied him a minor-role reduction under U.S.S.G. § 3B1.2(b).
Defendant had argued before the district court -- and argues on appeal -- that he
was an impoverished crew member who knew of the illegal purpose of the trip but,
as a courier, was the least culpable member of the conspiracy. Defendant contends
that he had no responsibility for planning the cocaine’s delivery, had no equity
interest in the cocaine, and enjoyed no authority in the enterprise. As such,
Defendant claims entitlement to a minor-role reduction under United States v. De
Varon, 175 F.3d 930 (11th Cir. 1999), when his role is compared to that of other
participants in the drug conspiracy. We disagree.
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Section 3B1.2(b) of the United States Sentencing Guidelines allows for a
two-level reduction in a defendant’s base offense level if the sentencing court
determines that the defendant was a minor participant in the offense. A minor
participant is 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(b),
comment. (n.3.). In De Varon, we set out two measurements that inform the
sentencing court’s mitigating-role-in-the-offense determination: (1) the
defendant’s role against the relevant conduct for which he has been held
accountable; and (2) the defendant’s role as compared to that of other participants
in his relevant conduct. Id. at 940. About the first measurement, De Varon
counsels that “[o]nly 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. About the second
measurement, De Varon counsels that this relative culpability inquiry includes
“only those participants who were involved in the relevant conduct attributed to
the defendant. The conduct of participants in any larger criminal conspiracy is
irrelevant.” Id. The first measurement is the most important and, in many cases,
may end the inquiry. Id. at 945.
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Defendant failed to show that he played a minor role in the relevant conduct
for which he was held accountable. Defendant admitted that his offense involved
2,225 kilograms of cocaine; he was held accountable for no larger quantity.
Where the relevant conduct for which a defendant is held accountable is identical
to the defendant’s actual conduct, no minor role entitlement may be established
simply by referencing some broader criminal scheme. See De Varon, 175 F.3d at
941. Also, in the drug courier context, a large amount of drugs itself is an
important factor -- maybe even a dispositive factor -- in determining the
availability of a minor role adjustment. Id. at 943 (“[T]he amount of drugs
imported is a material consideration in assessing a defendant’s role in [his]
relevant conduct....[W]e do not foreclose the possibility that amount of drugs may
be dispositive....”).
The sentencing court was prepared to consider relative culpability:
Defendant failed to show he was a minor participant relative to other defendants.*
Defendant’s counsel offered no distinction between Defendant’s participation in
the relevant conduct and that of an “average participant.” “The proponent of the
downward adjustment ... always bears the burden of proving a mitigating role in
*
We accept that the boat’s captain played a larger role than that of Defendant; the captain received
a role enhancement at sentencing. That the captain merited an upward role adjustment does not mean
that the others on the boat were not each average participants in the offense conduct.
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the offense by a preponderance of the evidence.” De Varon, 175 F.3d at 939.
Defendant failed to show that he was “less culpable than most other participants
in [his] relevant conduct.” Id. at 944 (emphasis in original).
The sentencing court committed no clear error in refusing Defendant a
minor-role adjustment.
AFFIRMED.
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