[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 20, 2006
No. 05-13222 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20099-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR HUGO MOLANO BORJA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 20, 2006)
Before TJOFLAT, ANDERSON and CARNES, Circuit Judges.
PER CURIAM:
Victor Molano Borja appeals his sentence imposed for importation of one
kilogram or more of heroin into the United States in violation of 21 U.S.C.
§ 952(a). Borja claims on appeal that the district court erred in denying him a
minor-role reduction pursuant to U.S.S.G. § 3B1.2(b). Borja argues on appeal that
the district court erred in denying him a minor-role reduction because it over-
emphasized his five previous trips to the United States. Borja claims that the
district court should have more thoroughly examined other factors in determining
whether he was a minor participant in smuggling the heroin into the United States.
Lastly, Borja argues that the district court did not distinguish him from those that
supplied him with the drugs for importation.
“This Court has long and repeatedly held that a district court’s determination
of a defendant’s role in the offense is a finding of fact to be reviewed only for clear
error.” United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999). The
Sentencing Guidelines permit a court to decrease a defendant’s offense level by
two points if it finds that the defendant was a “minor participant” in the criminal
activity. U.S.S.G § 3B1.2(b). 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, cmt. n.5. In determining whether a mitigating-role reduction is
warranted, a district court should: “[f]irst, and most importantly. . . measure the
defendant’s role against the relevant conduct for which she was held accountable at
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sentencing.” De Varon, 175 F.3d at 945. We have recognized that this prong of
the analysis will, in many cases, be dispositive. Id. Secondly, the district court
may measure the defendant’s role against the other participants involved in that
relevant conduct. Id.
In the context of a drug courier case such as this, a court may look to several
factors to determine what role a defendant played in the offense. These factors
include: (1) the amount of drugs; (2) the fair market value of drugs; (3) the amount
of money to be paid to the courier; (4) the defendant’s role in planning or
distributing the drugs; (5) the equity interest the defendant has in the drugs; (6) role
in planning the criminal scheme; and (7) role in distribution. Id. This list is not
exhaustive, and no one factor is more important than another. Id. The proponent of
a downward departure always bears the burden of proving a mitigating role in the
offense by a preponderance of the evidence. Id. at 939.
Upon review of the record and the sentencing transcripts, and upon
consideration of the briefs of the parties, we discern no reversible error. Borja
cannot show that the district court erred in denying him a minor-role reduction.
Borja was the courier of a significant amount of heroin (over 2500 grams of
heroin) for which he was to receive $20,000. Measuring this role against the
offense he was held accountable for at sentencing, namely, the importation of
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2,562.7 grams of heroin, shows that Borja was not a minor participant. The district
court relied upon a number of factors in determining that Borja was not a minor
participant, only one of which was the number of previous trips Borja made to the
United States. Further, the large amount of heroin Borja imported as well as the
large sum of cash he was to receive support the district court’s decision. See De
Varon, 175 F.3d at 943 (“[I]n the drug courier context . . . the amount of drugs
imported is a material consideration in assessing a defendant’s role in her relevant
conduct.”). We cannot conclude that the district court clearly erred in denying
Borja a minor-role reduction. Accordingly, we affirm the decision of the district
court.
AFFIRMED . 1
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Borja’s request for oral argument is denied.
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