[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 12, 2007
No. 06-14135 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20038-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS RODRIGO RINCON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 12, 2007)
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Jesus Rodrigo Rincon appeals his sentence imposed after he pled guilty to
conspiring to import five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 963. We affirm Rincon’s sentence.
Rincon asserts the district court erred in denying him a minor-role reduction
pursuant to U.S.S.G. § 3B1.2(b). Rincon contends the court failed to compare his
conduct to the conduct of his co-conspirators. Rincon asserts he was clearly less
culpable than the other participants because he had no independent knowledge of
the conspiracy details and his only function was to introduce the confidential
source (CS) to a co-conspirator, Pompilio Gutierrez, for a small fee.
"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) (en banc).
The defendant, as the proponent of the downward adjustment, bears the burden of
proving the mitigating role in the offense by a preponderance of the evidence. Id.
at 939.
The Sentencing Guidelines permit a court to decrease a defendant's offense
level by two points if it finds the defendant was a "minor participant" in the
criminal activity. U.S.S.G § 3B1.2(b). A minor participant is a defendant “who is
less culpable than most other participants, but whose role could not be described as
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minimal." U.S.S.G. § 3B1.2, comment. (n.5). In determining whether a minor-role
reduction is warranted, a district court "should be informed by two principles
discerned from the Guidelines.” De Varon, 175 F.3d at 940. Under the first prong,
which may be dispositive in many cases, “the district court must measure the
defendant's role against the relevant conduct for which [he] was held accountable
at sentencing.” Id. at 945. Relevant conduct is the “conduct attributed to the
defendant in calculating [his] base offense level." Id. at 941. Under the second
prong, “the district court may also measure the defendant's role against the other
participants, to the extent that they are discernable, in that relevant conduct.” Id. at
945. A defendant, however, “is not automatically entitled to a minor role
adjustment merely because [he] was somewhat less culpable than the other
discernable participants. Rather, the district court must determine that the
defendant was less culpable than most other participants in [the] relevant conduct."
Id. at 944.
Rincon did not satisfy the first prong because his actual conduct, a
substantial role in a conspiracy to import ten kilograms of cocaine into the United
States, was identical to the relevant conduct for which he was sentenced. Because
Rincon was only held accountable for the drugs that were imported due to his
personal conduct, “[the] district court [could] legitimately conclude that [Rincon]
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played an important or essential role in the importation of those drugs.” Id. at 942-
43.
As to the second prong, Rincon’s argument the district court erred by failing
to compare his conduct to the other participants’ conduct is not supported by the
record. Although at the sentencing hearing the district court did not make specific
findings comparing Rincon’s conduct to that of Gutierrez, the court did state it had
“discussed the matter with the probation officer, and [agreed] with the probation
officer’s conclusion.” In his conclusion, the probation officer included both an
assessment of Rincon’s conduct and a comparison between Rincon’s and
Gutierrez’s roles. The probation officer determined that Rincon and Gutierrez had
similar roles because they “were both contacts the CS spoke with on a regular basis
regarding the cocaine shipment [and t]hey both had knowledge of details regarding
the manner in which the cocaine would be smuggled, as well as when and where.”
In contrast to Rincon’s argument, he had a larger role in the conspiracy than
just recruiting the CS. He also remained in contact with both the CS and Gutierrez
regarding the cocaine shipment, participated in conversations planning the
smuggling of the drugs, relayed information to the CS to further the smuggling
operation, and arranged to receive $2,500 in exchange for introducing the CS to
Gutierrez. Although each participant had different roles in the conspiracy, these
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differences do not indicate that either co-conspirator was more culpable than
Rincon. We have recognized that it is entirely possible for conspiracies to exist
where no co-conspirator’s conduct warrants an adjustment for role in the offense.
De Varon, 175 F.3d at 944.
We conclude the district court did not clearly err in denying Rincon a minor-
role reduction.
AFFIRMED.
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