[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 28, 2007
No. 07-12468 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00388-CR-T-23-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABELARDO LOPEZ SALAZAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 28, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Abelardo Lopez Salazar appeals his sentence of 135 months of
imprisonment imposed following a plea of guilty to conspiracy to distribute and
possession with intent to distribute cocaine while on board a vessel subject to the
jurisdiction of the United States. See 46 U.S.C. app. §§ 1903(a), (g), (j) (1994); 18
U.S.C § 2; 21 U.S.C. § 960(b)(1)(B)(ii). Salazar argues that he was entitled to a
minor role reduction, see United States Sentencing Guidelines § 3B1.2 (Nov.
2005), and that the district court imposed an unreasonable sentence when it failed
to consider pertinent sentencing disparities. We affirm.
Salazar first contends that the district court erred when it denied him a
reduction based on his role in the offense, which Salazar contends was minor. We
review the determination of a defendant’s role in an offense for clear error. United
States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999). “[T]he district
court’s ultimate determination of the defendant’s role in the offense should be
informed by two principles discerned from the Guidelines: first, the defendant’s
role in the relevant conduct for which [he] has been held accountable at sentencing,
and, second, [his] role as compared to that of other participants in [his] relevant
conduct.” Id. at 940. “[A] defendant is not automatically entitled to a minor role
adjustment merely because [he] was somewhat less culpable than the other
discernable participants.” Id. at 944. “So long as the basis of the trial court’s
decision is supported by the record and does not involve a misapplication of a rule
2
of law, we believe that it will be rare for an appellate court to conclude that the
sentencing court’s determination is clearly erroneous.” Id. at 945.
This appeal does not present the rare instance of clear error about the denial
of a minor role reduction. The record establishes that Salazar, who was both a
crew-member and navigator of the vessel, was not less culpable than most other
participants, and the district court did not misapply the law. The district court did
not clearly err when it denied Salazar a minor role reduction.
Salazar also argues that his sentence is unreasonable. Salazar argues that the
district court refused to consider the possible disparity between Salazar’s sentence
and the potential sentences of Salazar’s Ecuadorian co-conspirators who were
released to the Ecuadorian government for prosecution. Salazar’s argument fails.
The transcript of the sentencing hearing establishes that the district court
sentenced Salazar after careful consideration of Salazar’s arguments in favor of
mitigation, the Guidelines range, and the statutory factors for sentencing, 18 U.S.C.
§ 3553(a). Section 3553(a)(6) requires a district court to consider sentence
disparities only “among defendants with similar records who have been found
guilty of similar conduct.” Id. § 3553(a)(6). The district court correctly refused to
consider potential disparities between Salazar’s sentence and the sentences of his
co-conspirators imposed by courts in Ecuador. “The sole concern of section
3
3553(a)(6) is with sentencing disparities among federal defendants.” United States
v. Clark, 434 F.3d 684, 687 (4th Cir. 2006) (emphasis omitted); United States v.
Searcy, 132 F.3d 1421 (11th Cir. 1998). The sentence Salazar received, which was
at the low end of the advisory Guidelines range, was reasonable.
Salazar’s sentence is
AFFIRMED.
4