[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 11, 2008
No. 07-13518 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00075-CR-T-26-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILMAN ANTONIO ALCALA-SANVICENTE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 11, 2008)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Wilman Antonio Alcala-Sanvicente appeals the district court’s denial of a
minor-role reduction, pursuant to U.S.S.G. § 3B1.2(b). Alcala-Sanvincente agreed
to serve aboard a freighter that he knew was being used to smuggle cocaine. The
crew consisted of eight other members. The Coast Guard discovered more than
10,000 kilograms of cocaine hidden on the vessel. Alcala-Sanvincente pled guilty
to one count of conspiracy 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. §§ 70503(a), 70506(a), (b) and 21 U.S.C. §
960(b)(1)(B)(ii), and one count of possessing 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. §§ 70503(a), 70506(a), 18 U.S.C. § 2,
and 21 U.S.C. § 960(b)(1)(B)(ii). His total offense level was reduced by five
levels, after which his Guidelines range was calculated as 135–168 months’
imprisonment. The district court sentenced Alcala-Sanvincente to 135 months’
imprisonment on both counts, to run concurrently.
On appeal, Alcala-Sanvicente argues that he was not an organizer or
supervisor of the smuggling operation, and he was less culpable than any of his co-
conspirators. He also argues that nothing in the district court’s sentence indicates
that it properly considered the factors in U.S.S.G. § 1B1.3(a) regarding his
adjustment. For the reasons set forth below, we affirm.
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“[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. Rodriquez De
Varon, 175 F.3d 930, 937 (11th Cir. 1999). Further explaining this standard, we
have stated,
[A] trial court’s choice between ‘two permissible views of the
evidence’ is the very essence of the clear error standard of review. . . .
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 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 (citation omitted).
Section 3B1.2 of the Sentencing Guidelines provides for a two-level
decrease if the defendant was a minor participant in any criminal activity.
U.S.S.G. § 3B1.2. A defendant is a minor participant if he is less culpable than
most other participants, but his role cannot be described as minimal. Id. cmt. n.5.
“The defendant bears the burden of proving his minor role by a preponderance of
the evidence.” United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002).
In determining whether a defendant qualifies for a minor-role adjustment,
the district court first “must measure the defendant’s role against the relevant
conduct for which [he] was held accountable at sentencing,” and second, “may also
measure the defendant’s role against other participants, to the extent that they are
discernable, in that relevant conduct.” De Varon, 175 F.3d at 945. Where a drug
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courier’s relevant conduct is limited to his own criminal act, a district court may
legitimately conclude that the courier played an important or essential role in that
crime. See id. at 942–43. Furthermore, “where 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. “[T]he amount of drugs imported,” moreover, “is a material
consideration in assessing a defendant’s role in [his] relevant conduct.” Id. at 943.
As to the second prong, “the district court must determine that the defendant was
less culpable than most other participants in [his] relevant conduct.” Id. at 944.
Moreover, relative culpability is not necessarily dispositive, as none of the
participants may have played a minor or minimal role. Id.
The district court did not clearly err in denying Alcala-Sanvicente’s request
for a minor-role reduction to his offense level because he is being held accountable
only for the amount of drugs that are attributable to him personally, and none of
the evidence suggests that he played a smaller role in the offense than any of the
other crew members, except the ship’s captain. Accordingly, we affirm.
AFFIRMED.
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