[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 15, 2007
No. 06-15069 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00129-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURO LUIS BADILLO LOZANO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 15, 2007)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
In December 2005, appellant and three other men were apprehended while
aboard a fishing vessel transporting more than 3,500 pounds of cocaine headed for
the United States. Appellant had agreed to take part in the voyage as the vessel’s
cook for a payment of $4,000, $2,000 of which he had received in advance. A
Middle District of Florida grand jury subsequently returned a two-count indictment
against appellant and the others charging them in Count One of 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), and 21 U.S.C. § 960(b)(1)(B)(ii), and in Count Two of conspiring 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 of 46 U.S.C. app.
§ 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii). Appellant pled guilty to both
counts pursuant to a plea agreement, and on September 5, 2006, the district court
sentenced him to concurrent prison terms of 135 months, at the low end of the
Sentencing Guidelines sentence range for a defendant with a criminal history
category I, i.e., 135-168 months.
He now appeals, arguing that the district court erred (1) in calculating his
sentence range because it refused to adjust his offense level downward by two
levels, pursuant to U.S.S.G. § 3B1.2(b), for playing a minor role in the offenses,
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and (2) in imposing unreasonable sentences.
Minor-Role Adjustment
We have “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) (en banc).
This is a fact-intensive inquiry and, “[s]o long as the basis of the trial court’s
decision is supported by the record and does not involve a misapplication of a rule
of law,” we rarely conclude that the district court’s determination is clearly
erroneous. Id. at 945.
The Sentencing Guidelines provide for a downward adjustment of the
offense level “for a defendant who plays a part in committing the offense that
makes him substantially less culpable than the average participant.” U.S.S.G.
§ 3B1.2, comment. (n.3). A defendant who “is less culpable than most other
participants, but whose role could not be described as minimal” is granted a two-
level adjustment as a minor participant. Id., comment. (n.5). The defendant bears
the burden of proving a mitigating role in the offense by a preponderance of the
evidence. De Varon, 175 F.3d at 939.
When determining a defendant’s role in the offense, the district court must
measure the defendant’s role against the relevant conduct attributed to the
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defendant. Id. at 940-41. “[W]here 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 criminal scheme in which [he]
was a minor participant but for which [he] was not held accountable.” Id. at 941.
In many cases, this analysis will be dispositive, id. at 945, but, if it is not, the
district court may also measure the defendant’s role against other participants who
are identifiable from the evidence and who were involved in the relevant conduct
attributed to the defendant, id. at 944. “The conduct of participants in any larger
criminal conspiracy is irrelevant.” Id. The district court need not make any
specific findings other than the ultimate determination of the defendant’s role in
the offense. Id. at 940.
In the drug courier context, the amount of drugs involved is a material
consideration in the assessment of the defendant’s role and, in some circumstances,
may be a determinative factor. Id. at 943. Other factors relevant to discerning the
defendant’s culpability include, but are not limited to: the “fair market value of
drugs, amount of money to be paid to the courier, equity interest in the drugs, role
in planning the criminal scheme, and role in the distribution.” Id. at 945.
Here, appellant was held accountable for his actual conduct, which was
helping to transport 3,500 pounds of cocaine by serving as one of three crew
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members on a vessel carrying that quantity of cocaine. He did not meet his burden
to establish that he played a lesser role in transporting the drugs than the other two
crew members. Therefore, the district court did not clearly err by refusing to
reduce his offense level under U.S.S.G. § 3B1.1(2)(b).
Reasonableness
“In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the [18
U.S.C.] § 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237 (11th
Cir. 2006). The section 3553(a) factors include: (1) the nature and circumstances
of the offense and the history and characteristics of the defendant; (2) the need to
reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; (3) the need for deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the advisory
guidelines range; (8) the need to avoid unwanted sentencing disparities; and (9) the
need to provide restitution to victims. The district court need not discuss each
factor or state on the record that it has explicitly considered each factor. United
States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). An acknowledgment by the
district court that it has considered the defendant’s arguments and the § 3553(a)
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factors will suffice. Id.
The reasonableness review is deferential, and the burden of proving that the
sentence is unreasonable in light of the record and the § 3553(a) factors rests on the
party challenging the sentence. United States v. Wilks, 464 F.3d 1240, 1245 (11th
Cir. 2006), cert. denied, 127 S.Ct. 693 (2006). Although a sentence within the
Guidelines range will not be considered per se reasonable, “when the district court
imposes a sentence within the advisory Guidelines range, we ordinarily will expect
that choice to be a reasonable one.” Talley, 431 F.3d at 787-88.
Appellant has not met his burden to establish that the district court imposed
unreasonable sentences. The record reflects that the court viewed the Sentencing
Guidelines as advisory and properly considered the purposes of sentencing as
reflected in 18 U.S.C. § 3553(a).
AFFIRMED.
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