[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13669 March 25, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00061-CR-T-26-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMINIO CASTRO-PALACIOS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 25, 2008)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
After pleading guilty to possession with intent to distribute five kilograms or
more of cocaine while aboard a vessel subject to U.S. jurisdiction and conspiracy
to possess with intent to distribute five kilograms or more of cocaine while aboard
a vessel subject to U.S. jurisdiction, Herminio Castro-Palacios appeals the district
court’s imposition of 135-month concurrent sentences. Specifically, Castro-
Palacios argues on appeal that the district court erred in denying him a mitigating-
role reduction because: (a) his role was merely that of a deckhand who was
involved in refueling operations; (b) he had no control over the events that
occurred that day; (c) there was no evidence that he had ever owned, sold, or
otherwise distributed drugs; and (d) he did not actually receive, nor did he believe
that he would share in, any of the drug proceeds. Also, Castro-Palacios contends
that his role as a courier must be viewed in light of the entire drug trafficking
scheme, and that such a role is clearly less culpable than that of other participants
comprising the entire conspiracy.
The U.S. Sentencing Guidelines permit a court to decrease a defendant’s
offense level by four levels if it finds that the defendant was a “minimal
participant” in the criminal conspiracy, or by two levels if it finds that the
defendant was a “minor participant” in the criminal activity. U.S. Sentencing
Guidelines Manual § 3B1.2(a), (b) (2007). “The proponent of the downward
adjustment . . . always bears the burden of proving a mitigating role in the offense
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by a preponderance of the evidence.” United States v. Rodriguez De Varon, 175
F.3d 930, 939 (11th Cir. 1999) (en banc). We review the district court’s
interpretation of the Sentencing Guidelines de novo, but we must accept the court’s
factual findings unless they are clearly erroneous. United States v. Jordi, 418 F.3d
1212, 1214 (11th Cir. 2005). Specifically, we review the district court’s
determination of a defendant’s role in the offense only for clear error. See
Rodriguez De Varon, 175 F.3d at 937, 945. “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.
In Rodriguez De Varon, we identified two principles that should inform the
district court’s determination of whether the defendant’s role in an offense entitles
him to a mitigating-role reduction. Id. at 940, 945. First, and most importantly,
“the district court must measure the defendant’s role against the relevant conduct
for which [he] has been held accountable” at sentencing. Id. at 940. That is, “the
district court must assess whether the defendant is a minor or minimal participant
in relation to the relevant conduct attributed to the defendant in calculating [his]
base offense level.” Id. at 941. Thus, in the drug courier context, a courier “cannot
prove that [he] is entitled to a minor role adjustment simply by pointing to some
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broader criminal scheme in which [he] was a minor participant but for which [he]
was not held accountable.” Id. Although courier status alone neither precludes nor
establishes minor participation in an offense, “when a drug courier’s relevant
conduct is limited to [his] own act of importation, a district court may legitimately
conclude that the courier played an important or essential role in the importation of
those drugs.” Id. at 942-43.
Second, although we have acknowledged that the first method of analysis
will be dispositive in many cases, the district court may also measure a defendant’s
culpability against that of other participants in a conspiracy. Id. at 945. However,
a district court is limited to considering only those participants who are identifiable
by the evidence and who were involved in the relevant conduct attributed to the
defendant. Id. at 944. “The conduct of participants in any larger criminal
conspiracy is irrelevant.” Id. Furthermore, a defendant is not entitled to a minor-
role reduction merely because he demonstrates that his role in the relevant conduct
was less than that of other identifiable participants; oftentimes, no participants play
a minor role. Id. To receive a mitigating-role reduction, the defendant must prove
that he was substantially less culpable than most other participants in the relevant
conduct. Id.; U.S. Sentencing Guidelines Manual § 3B1.2 cmt. n.3(A) (2007).
After carefully reviewing the record and considering the parties’ briefs, we
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discern no reversible error. The relevant conduct for which Castro-Palacios was
held accountable at sentencing only concerned the 2,500 kilograms of cocaine that
ultimately ended up on board a fishing boat, the Don Juan K, along with Castro-
Palacios and the other conspirators. Although the original plan called for
transporting the drugs solely by “go fast” boat without ever storing the drugs
aboard the Don Juan K, the conspirators expected to use the Don Juan K as a
refueling platform manned by Castro-Palacios. Castro-Palacios’s paid role as the
operation’s refueler constitutes an integral part in the conspiracy to possess this
large quantity of drugs with intent to distribute it, and he is no less culpable, let
alone substantially less culpable, than the crew of the “go fast” boat or any other
discernable participants. We may not, as Castro-Palacios urges, compare his role
to that of any individuals involved in a larger drug trafficking conspiracy that
extends beyond this one sizeable shipment. The district court did not clearly err in
denying Castro-Palacios a mitigating-role reduction, and accordingly, we affirm.
AFFIRMED.1
1
Castro-Palacios’s request for oral argument is DENIED.
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