The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10635 ELEVENTH CIRCUIT
AUGUST 30, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-20752-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS PEREYRA DIAZ,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(August 30, 2010)
Before BLACK, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Juan Carlos Pereyra Diaz appeals his 37-month sentence, which he received
after pleading guilty to importing 500 grams or more of cocaine, in violation of 21
U.S.C. § 952(a). On appeal, Pereyra asserts that the district court erroneously
denied him a two-level minor-role sentencing reduction under the United States
Sentencing Guidelines (U.S.S.G.) § 3B1.2(b). Specifically, Pereyra contends that
the district court failed to properly apply the test for minor-role reductions set
forth in United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc).
The Guidelines permit a two-level reduction in the base offense level for a
defendant who played a minor role in an offense. U.S.S.G. § 3B1.2(b). The
defendant has the burden of establishing his entitlement to the reduction by a
preponderance of the evidence. De Varon, 175 F.3d at 939. Whether a defendant
is entitled to a minor-role reduction is “fundamentally [a] factual determination”
that we review for clear error. Id. at 934, 938.
In determining whether a defendant is entitled to a minor role reduction, the
district court engages in a two-part inquiry. See id. at 945. First, the district court
must measure the defendant’s actions against “the conduct for which [he] has been
held accountable under U.S.S.G. § 1B1.3.” Id. at 934. This inquiry will often be
dispositive. Id. at 945. If a defendant’s actual conduct is identical to the relevant
conduct considered for sentencing purposes, the defendant cannot prove that an
adjustment is appropriate “simply by pointing to some broader criminal scheme in
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which [he] was a minor participant but for which [he] was not held accountable.”
Id. at 941.
As to the first step in the analysis, the district court in this case found “this
is not a situation where [Pereyra] is a smaller part of a larger group. He was the
criminal activity.” (emphasis added.) Although Pereyra alleges that he was part of
a larger scheme, he was held accountable only for importing cocaine, not for any
broader conspiracy. As to his actual conduct, Pereyra admitted that he did, in fact,
import 1,988 grams of cocaine into the United States. The district court, therefore,
did not clearly err in finding that Pereyra’s actual conduct was not minor, relative
to the conduct for which he was held accountable. This determination was
dispositive, and the court did not need to address the second prong of the test. See
De Varon, 175 F.3d at 945.
The district court may advance to the second prong of the analysis only
“where the record evidence is sufficient.” De Varon, 175 F.3d at 934. If the record
allows, the court may “measure the defendant’s conduct against that of other
participants in the criminal scheme attributed to the defendant.” Id. Not all
participants are relevant, and two principles guide the district court in evaluating
proposed comparators: (1) “the district court should look to other participants only
to the extent that they are identifiable or discernable from the evidence”; and (2)
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“the district court may consider only those participants who were involved in the
relevant conduct attributed to the defendant. The conduct of participants in any
larger criminal conspiracy is irrelevant.” Id. at 944. Again, it is the defendant’s
burden to provide a record sufficient to demonstrate relevant discernable
comparators. See id. at 934. Pereyra failed to provide sufficient evidence of such
comparators. Were the district court to have considered the second prong of the
minor-role analysis, Pereyra’s vague descriptions of the shadowy figures with
whom he associated during the drug transaction would have been insufficient to
meet his burden.
In the drug courier context, we have set forth a non-exhaustive list of factors
that the district court may consider in making the ultimate determination as to
whether the defendant is entitled to a minor role reduction. Id. at 945. These
factors are examined during the district court’s two-step inquiry. Id. The factors
include the amount of drugs he is carrying, their fair market value, the amount of
money to be paid to the courier, any equity interest the courier might have in the
drugs, the courier’s role in planning the criminal scheme, and the courier’s role in
the distribution. Id. Although the district court did not expressly address each of
these factors in this case,“a district court is not required to make any specific
findings other than the ultimate determinations of the defendant’s role in the
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offense.” Id. at 940. In the final analysis, the decision of whether a drug courier
qualifies for a minor-role reduction “falls within the sound discretion of the trial
court.” Id. at 945. Pereyra has failed to demonstrate that the court committed
clear error in its ultimate determination that he was not entitled to a minor-role
sentencing reduction. Accordingly, the sentence is
AFFIRMED.
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