[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 21, 2007
No. 06-16530 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00456-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ENRIQUE BERDUGO-CASTRO,
a.k.a. Enrique Berdugo-Castro,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 21, 2007)
Before BIRCH, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Carlos Enrique Berdugo-Castro appeals his 135-month sentence for
possession with intent to distribute 5 kilograms or more of cocaine while aboard a
vessel subject to the jurisdiction of the United States, in violation of 46 App.
U.S.C. § 1903(a) and (g), 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to possess
with intent to distribute 5 kilograms or more of cocaine while aboard a vessel
subject to the jurisdiction of the United States, in violation of § 1903(a), (g), and
(j), § 960(b)(1)(B)(ii). Berdugo-Castro was one of 8 crew members of a small
vessel transporting approximately 1,200 kilograms of cocaine. On appeal, he
argues that the district court erred by denying him a mitigating-role reduction at
sentencing, pursuant to U.S.S.G. § 3B1.2, to reflect his minimal or minor role in
the offense.
A district court’s determination of a defendant’s role in an offense
constitutes a factual finding to be reviewed only for clear error, and the defendant
bears the burden of proof. United States v. De Varon, 175 F.3d 930, 937, 939
(11th Cir. 1999). The guidelines provide for a two-level reduction for a minor
participant, which is defined as a defendant “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). To determine whether a minor-role reduction applies, a district court
first should measure the defendant’s role against the relevant conduct for which the
defendant has been held accountable. De Varon, 175 F.3d at 940-41. The district
court may also measure the defendant’s culpability in comparison to that of other
2
participants in the relevant conduct. Id. at 944-45. In doing so, the district court
should look only to other participants who are identifiable or discernable from the
evidence, who are involved in the conduct attributed to the defendant. Id. at 944.
In this case, Berdugo-Castro and 7 other crew members knowingly helped
transport 1,2000 kilograms of cocaine—a substantial amount of drugs—on board a
vessel, and he was held accountable for this conduct. Further, he did not present
any evidence to indicate that his conduct was less culpable than that of the other
crew members. Berdugo-Castro’s role in the offense was identical to his relevant
conduct, and he failed to show that he was less culpable than other identifiable
participants in the offense. Accordingly, we cannot conclude that the district court
clearly erred in finding that Berdugo-Castro did not qualify for a mitigating-role
reduction.
AFFIRMED.
3