[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 17, 2007
No. 07-10417 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00380-CR-T-26-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAROLD GARCIA-OLAVE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 17, 2007)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Harold Garcia-Olave appeals his sentence imposed after his plea of guilty to
conspiracy and 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 (j). On appeal, Garcia-Olave
contends the district court erred at sentencing by denying him a mitigating-role
reduction. In particular, Garcia-Olave argues the Sentencing Guidelines did not
preclude him from receiving a mitigating-role reduction, and the district court
should have compared his role to the roles of the participants in the larger
conspiracy who evaded arrest.
Although the Sentencing Guidelines are advisory, a district court must
calculate the Guidelines range correctly and must consider it when determining a
defendant’s sentence. United States v. Crawford, 407 F.3d 1174, 1178-79 (11th
Cir. 2005). A district court’s determination of a defendant’s role in an offense is a
finding of fact, which we review for clear error. United States v. De Varon, 175
F.3d 930, 934 (11th Cir. 1999) (en banc).
Section 3B1.2 of the Guidelines permits a mitigating-role adjustment to the
applicable Guidelines range for a defendant who is substantially less culpable than
the average participant due to a minor or mitigating role. U.S.S.G. § 3B1.2, cmt.
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n.3. The defendant bears the burden of establishing that his or her role was
minimal or minor by a preponderance of the evidence. De Varon, 175 F.3d at 939.
In determining whether a defendant meets the burden of demonstrating a
mitigating role, a district court examines (1) the defendant’s role based on the
relevant conduct for which he was held accountable, and (2) the defendant’s role in
comparison to the other participants. Id. at 940. The district court may consider
any and all facts probative of the defendant’s role. Id. at 943. In the drug courier
context, relevant facts include, but are not limited to: the amount of drugs, their
fair market value, the amount of money to be paid to the courier, and the role in the
distribution. Id. at 945. The defendant must establish that he played a minor role
in the conduct for which he has been found guilty and not just a minor role in the
larger conspiracy. Id. at 941-942, 944. Therefore, the district court may only
assess a defendant’s culpability in comparison to “other participants in the relevant
conduct.” Id. at 944. That is those who are “identifiable or discernable from the
evidence,” and “who were involved in the relevant conduct attributed to the
defendant.” Id. “The conduct of participants in any larger criminal conspiracy is
irrelevant.” Id.
In this case, the record shows that Garcia-Olave was held accountable for
4,000 kilograms of cocaine and admitted to expecting to receive more than $10,000
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for his services. The record demonstrates he played an active role in protecting the
large amount of cocaine. In addition, Garcia-Olave did not introduce any evidence
of the roles played by the other nine crew members. Based on the amount of
cocaine, Garcia-Olaves’ role in protecting it, and the lack of evidence comparing
his role to the roles of the other nine crew members, we cannot say the district
court erred in finding Garcia-Olave did not have a mitigating or minor role
deserving of an adjustment to his advisory Guidelines range. See De Varon, 175
F.3d at 939, 944. Accordingly, we affirm.
AFFIRMED.
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