USCA11 Case: 21-13316 Date Filed: 08/09/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13316
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS CARLOS MURILLO ASPRILLA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00380-SCB-AAS-2
____________________
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2 Opinion of the Court 21-13316
Before BRASHER, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Luis Carlos Murillo Asprilla appeals the district
court’s imposition of his 97-month total sentence for one count of
conspiracy to possess with intent to distribute five kilograms or
more of cocaine while aboard a vessel subject to the jurisdiction of
the United States, and one count of aiding and abetting in the pos-
session with intent to distribute five kilograms or more of cocaine
while aboard a vessel subject to the jurisdiction of the United
States. He argues that the district court erred in refusing to reduce
his offense level for playing a mitigating role in the offense conduct.
Having read the parties’ briefs and reviewed the record, we affirm
Asprilla’s 97-month sentence.
I.
We review a district court's determination of a defendant's
role in an offense for clear error. United States v. De Varon,
175 F.3d 930, 937 (11th Cir. 1999) (en banc). Clear error review
requires that we be left with a definite and firm conviction that a
mistake has been made. United States v. Valois, 915 F.3d 717, 731
(11th Cir. 2019).
II.
Under U.S.S.G. § 3B1.2, a defendant’s offense level is re-
duced by four levels if the defendant was a “minimal” participant
in criminal activity, two levels if the defendant was a “minor”
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21-13316 Opinion of the Court 3
participant, and three levels in “cases falling between” the two cat-
egories. U.S.S.G. § 3B1.2. In evaluating a defendant’s role in an
offense, the district court should consider (1) the defendant’s role
in the relevant conduct attributed to him, and (2) his role compared
to that of the other participants in the defendant’s relevant conduct.
De Varon, 175 F.3d at 940. The district court “should look to other
participants only to the extent that they are identifiable or discern-
ible from the evidence.” Id. at 944. Furthermore, “the district
court may consider only those participants who were involved in
the relevant conduct attributed to the defendant.” Id.
The determination of whether to apply a mitigating role re-
duction is “based on the totality of the circumstances and involves
a determination that is heavily dependent upon the facts of the par-
ticular case.” United States v. Presendieu, 880 F.3d 1228, 1249 (11th
Cir. 2018) (quoting U.S.S.G. § 3B1.2 comment. (n.3(C))). District
courts can consider drug quantity at sentencing, but this factor can-
not be the only factor used to determine the sentence. United
States v. Cruickshank, 837 F.3d 1182, 1194-95 (11th Cir. 2016). Ul-
timately, “[e]ven if a defendant played a lesser role than the other
participants” in a conspiracy, “that fact does not entitle [him] to a
role reduction since it is possible that none are minor or minimal
participants.” United States v. Martin, 803 F.3d 581, 591 (11th Cir.
2015) (citation and quotation marks omitted).
III.
A review of the record demonstrates that the district court
did not clearly err in declining to apply a mitigation role reduction.
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4 Opinion of the Court 21-13316
Asprilla, along with two co-defendants, were aboard a vessel in in-
ternational waters south of Panama when a maritime patrol air-
craft spotted them. The aircraft alerted the United States Coast
Guard, and it launched a helicopter to intercept the vessel. The
helicopter ordered the vessel to stop but it did not comply; rather,
the vessel attempted to outrun the helicopter. The helicopter used
disabling fire to incapacitate the vessel, and after this, members in
the helicopter observed crew members throwing bales from the
vessel into the ocean. The Coast Guard recovered 8 bales, which
contained 187.3 kilograms of cocaine.
After his co-defendants debriefed the government and en-
tered into plea agreements, Asprilla agreed to plead guilty to both
counts without a written agreement. The probation officer
grouped both offenses and assigned Asprilla a base offense level of
36, and a criminal history category of I in the PSI. The PSI noted
that Asprilla met the safety valve criteria and he qualified for a re-
duction for acceptance of responsibility. This yielded a total of-
fense level of 31. With a base offense level of 31 and a criminal
history category of I, the guideline range was 108-135 months’ im-
prisonment. Asprilla objected, in part, to the failure of the PSI to
assign him a mitigating role reduction under U.S.S.G. § 3B1.2. He
argued that he was simply a paid crewmember who had no propri-
etary interest in the drugs.
The district court denied the mitigation role reduction, find-
ing all the defendants equally culpable. Although Asprilla alleged at
sentencing that one of the other passengers served as the captain
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21-13316 Opinion of the Court 5
or person in charge, none of the crewmembers admitted to that
when they were arrested. Moreover, the evidence showed that
Asprilla spoke with the Coast Guard at the initial interdiction. The
district court properly concluded that there was not enough evi-
dence to indicate that Asprilla was substantially less culpable than
the average participant and, thus, the two-level reduction was not
warranted. However, the district court did grant in part Asprilla’s
request for a variance. The district court sentenced him below the
guideline range and varied one level to a 97-month sentence. We
conclude that, in reviewing the evidence, Asprilla cannot show that
the district court clearly erred because he engaged in essentially the
same conduct as the other identifiable participants in the conspir-
acy. Accordingly, based on the aforementioned reasons, we affirm
Asprilla’s 97-month sentence.
AFFIRMED.