[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 29, 2008
No. 08-12252 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20715-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO MARTIN,
a.k.a. El Platino,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 29, 2008)
Before HULL, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Ernesto Martin appeals his 216-month sentence for conspiracy to possess
with intent to distribute five kilograms or more of cocaine, 21 U.S.C. § 846, and
possession with intent to distribute five kilograms or more of cocaine, 21 U.S.C. §
841(a)(1). On appeal, Martin argues that his offense level calculation should have
been reduced by two levels because he was a minor participant. We affirm.
STANDARD OF REVIEW
We review “a district court’s determination of whether a defendant qualifies
for a minor role adjustment . . . only for clear error.” United States v. Rodriguez
De Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). “[T]he district court
ha[s] considerable discretion in making this fact-intensive determination.” Id. at
946.
DISCUSSION
Martin asserts that there were two groups of defendants with different
relevant conduct in the conspiracy. Four defendants, including Martin, were
convicted of crimes related to the original conspiracy to distribute 100 kilograms
of cocaine. Two defendants were convicted of crimes relating to the 18 kilograms
of cocaine actually received by the co-conspirators. Because he was held
responsible for the entire 100 kilograms, Martin argues that the district court
erroneously compared his role in the offense with the roles of the two defendants
held responsible for only the 18 kilograms.
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A two-level reduction for playing a minor role is appropriate if the defendant
“[was] less culpable than most other participants,” but his role was not minimal.
U.S. S ENTENCING G UIDELINES M ANUAL § 3B1.2 cmt. n.5 (2007). “[T]he
defendant . . . bears the burden of proving a mitigating role in the offense by a
preponderance of the evidence.” Rodriguez De Varon, 175 F.3d at 939 (citations
omitted).
The district court analyzes the mitigating role of a defendant “by two modes
of analysis: First, . . . the district court must measure the defendant’s role against
the relevant conduct for which []he was held accountable at sentencing . . . .
Second, 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. An offense may involve no minor or minimal participant. Id. at 944.
At sentencing, the district court briefly asked defense counsel whether
Martin did more or less in the conspiracy than one of the defendants held
responsible for only 18 kilograms of cocaine. Even if the district court’s question
were an attempt to compare Martin’s conduct to that defendant’s, the court did not
commit reversible error. The probation officer found that none of the six co-
conspirators deserved a mitigating-role reduction. Similarly, the government did
not recommend to the district court that any of the co-conspirators be held to a
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leadership role.
Martin has not shown by a preponderance of the evidence that his role was
minor in the conduct for which he was held accountable. Nor did the district court
improperly measure Martin’s role in the conspiracy “against the relevant conduct
for which []he was held accountable at sentencing.” Id. at 945. Thus, the district
court did not clearly err in finding that Martin was not entitled to a mitigating-role
reduction.
CONCLUSION
After carefully reviewing the record and the parties’ briefs, we discern no
reversible error.
AFFIRMED.
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