[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13789 March 25, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00061-CR-T-26MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO SANTANA,
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, Julio Santana appeals the district court’s
imposition of 135-month concurrent sentences. Specifically, Santana argues on
appeal that the district court erred in denying him a mitigating-role reduction
because it only considered his role relative to the charged codefendants in this case
and did not consider his role relative to the conduct of all the uncharged
coconspirators who organized and profited from the drug trafficking venture.
Santana points out that his role was nothing more than that of a courier, that he did
not actually receive, nor did he believe that he would share in, any of the drug
proceeds, and that various individuals who were equally responsible for the
commission of the instant offense have not been arrested or prosecuted.
Additionally, Santana asserts that the court failed to consider the amount of money
that he was paid for his involvement in the conspiracy, his lack of equity interest in
the drugs, his nonexistent role in the planning of the instant offense, and his role in
the overall distribution of the cocaine.
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
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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
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
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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
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
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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
discern no reversible error. The relevant conduct for which Santana 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 Santana
and the other conspirators. The evidence supports the district court’s conclusion
that Santana’s role – as a paid crewman of the “go fast” boat that initially
transported this large shipment of drugs – constitutes an integral part in the
conspiracy to possess the drugs with the intent to distribute them. Santana
acknowledged that he could not distinguish his conduct from that of his fellow
crew members, and he is no less culpable, let alone substantially less culpable, than
any other discernable participants in this conspiracy. We may not, as Santana
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 Santana a mitigating-role reduction, and
accordingly, we affirm.
AFFIRMED.
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