[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 18, 2007
No. 06-12079 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00385-CR-T-17-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTO MCLAUGHIN-HUDGSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 18, 2007)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Justo McLaughlin-Hudgson appeals his concurrent 135-month sentences for
possession with the intent to distribute five or more kilograms of cocaine while
onboard a vessel and conspiracy to possess with the intent to distribute five or
more kilograms of cocaine while onboard a vessel, in violation of 46 App. U.S.C.
§ 1903(a), (g), and (j); 18 U.S.C. § 2; and 21 U.S.C. § 960(b)(1)(B)(ii). After
review, we affirm McLaughlin-Hudgson’s sentences.
I. BACKGROUND
The United States Coast Guard (“USCG”) spotted a “go fast” boat in
international waters off the coast of Colombia. The go fast boat engaged in
evasive maneuvers while its crew threw bales of cocaine overboard. The USCG
shot and disabled the go fast boat’s engines. Upon boarding the go fast boat, the
USCG found four crew members, including McLaughlin-Hudgson, and a captain.
The USCG recovered eight bales of cocaine from the water. Crew member Pedro
Vallenzuella stated that the go fast boat had been carrying sixty bales of cocaine.
Based on the weight of the recovered cocaine bales and statements given by the
crew, the go fast boat was transporting approximately 1,500 kilograms of cocaine.
The presentence investigation report (“PSI”) set McLaughlin-Hudgson’s
base offense level at 38, pursuant to U.S.S.G. § 2D1.1(c)(1), based on the cocaine
on the go-fast boat being 150 kilograms or more.1 After a two level safety-valve
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Section 2D1.1(c)(1) provides for an offense level of 38 for 150 kilograms or more of
cocaine. There was no objection to the drug quantity calculation being more than 150 kilograms.
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reduction and a three-level reduction for acceptance of responsibility, McLaughlin-
Hudgson’s total offense level was 33. With a criminal history category of I, the
PSI recommended an advisory guidelines range of 135 to 168 months.
At sentencing, McLaughlin-Hudgson argued that he was entitled to a minor-
role reduction. The district court overruled McLaughlin-Hudgson’s objection and
adopted the guidelines calculations in the PSI.
McLaughlin-Hudgson asked for a ten year sentence. In mitigation,
McLaughlin-Hudgson stated that was from an extremely poor island where there
were few jobs and that he wanted a short sentence so he could see his family and
young children.
The district court sentenced McLaughlin-Hudgson to concurrent 135-month
sentences. In arriving at this sentence, the district court stated that it considered the
advisory guidelines range and the 18 U.S.C. § 3553(a) factors. McLaughlin-
Hudgson filed this appeal.
II. DISCUSSION
On appeal, McLaughlin-Hudgson argues that the district court erred by
failing to grant him a minor role reduction, pursuant to U.S.S.G. § 3B1.2. We
review for clear error a district court’s determination of a defendant’s qualification
for a role reduction. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
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1999) (en banc). The defendant has the burden of establishing his role in the
offense by a preponderance of the evidence. Id. at 939. Two principles guide a
district court’s consideration: (1) the court must compare the defendant’s role in
the offense with the relevant conduct attributed to him in calculating his base
offense level; and (2) the court may compare the defendant’s conduct to that of
other participants involved in the offense. Id. at 940-45. When the relevant
conduct attributed to a defendant is identical to his actual conduct, he cannot prove
that he is entitled to a minor-role adjustment simply by pointing to some broader
scheme for which he was not held accountable. Id. at 941.
The district court did not clearly err in refusing McLaughlin-Hudgson a
minor-role reduction. Under the first prong of De Varon, the district court held
McLaughlin-Hudgson accountable for only his own conduct, namely his
involvement in the transporting of the 1,500 kilograms of cocaine, a substantial
quantity of drugs. Under the second prong of De Varon, McLaughlin-Hudgson
was at least as culpable as his crewmates.
Contrary to McLaughlin-Hudgson’s contention, the district court did not
operate under a mistaken belief that drug couriers were per se ineligible for a
minor-role reduction. The district court considered whether a minor-role reduction
was appropriate in McLaughlin-Hudgson’s case and determined that it was not.
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McLaughlin-Hudgson also argues that the district court erred in imposing an
unreasonable sentence, in light of the 18 U.S.C. § 3553(a) factors. McLaughlin-
Hudgson contends that his sentence is too severe given his productive life as a
fisherman, lack of a criminal history and disadvantaged background. He also
argues that his sentence represents an unwarranted disparity because one of his co-
defendants received a 97-month sentence.
After United States v. Booker, a district court in determining a reasonable
sentence, must consider the correctly calculated sentencing range under the
Sentencing Guidelines and the factors in § 3553(a). See Booker, 543 U.S. 220,
258-64, 125 S. Ct. 738, 764-67 (2005); United States v. Talley, 431 F.3d 784, 786
(11th Cir. 2005). We review the ultimate sentence imposed for unreasonableness
in light of § 3553(a)’s factors and the reasons given by the district court. United
States v. Williams, 435 F.3d 1350, 1354-55 (11th Cir. 2006). The party who
challenges the sentence bears the burden of showing that it is unreasonable.
Talley, 431 F.3d at 788. Although there is no presumption of reasonableness for a
sentence within the advisory guidelines range, when the district court imposes a
guidelines sentence, “we ordinarily will expect that choice to be a reasonable one.”
Id.
After review, McLaughlin-Hudgson fails to show that his sentences are
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unreasonable. McLaughlin-Hudgson’s concurrent 135-month sentences were at
the bottom of the advisory guidelines range and only one year above the ten-year
mandatory minimum for his crimes. See 21 U.S.C. § 960(b)(1)(B)(ii). Apart from
the district court’s refusal to give a minor-role reduction, McLaughlin-Hudgson
does not dispute the district court’s guidelines calculations. The district court
considered McLaughlin-Hudgson’s arguments in mitigation about his four young
children, elderly parents and disadvantaged background. The district court also
indicated that it had considered the § 3553(a) sentencing factors and believed that a
sentence at the low-end of the advisory guidelines range was sufficient but not
greater than necessary to comply with the statutory purposes of sentencing.
Furthermore, the disparity between McLaughlin-Hudgson’s 135-month sentences
and his co-defendant’s 97-month sentence is a result of the co-defendant’s
substantial assistance and therefore is not unwarranted.
AFFIRMED.
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