The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 20, 2006
No. 05-16724 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00297-CR-T-26-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL ALFONSO ESCOBAR-RIVERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 20, 2006)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Gabriel Alfonso Escobar-Rivera appeals his 135-month sentence for
possession with intent to distribute 5 kilograms or more of cocaine while aboard a
vessel subject to the United States’s jurisdiction, in violation of 46 App. U.S.C.
§§ 1903(a), (g); 18 U.S.C. § 2; and 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to
possess with intent to distribute 5 kilograms or more of cocaine while aboard a
vessel subject to the United States’s jurisdiction, in violation of 46 App. U.S.C.
§§ 1903(a), (g), & (j); and 21 U.S.C. § 960(b)(1)(B)(ii). Escobar-Rivera argues
that he should have received a minor-role reduction pursuant to U.S.S.G. § 3B1.2.
We have held that a district court’s determination of a defendant’s role in an
offense is a finding of fact, to be reviewed for clear error. United States v. De
Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). The guidelines allow a court
to decrease a defendant’s offense level by two points if the court finds the
defendant was a minor participant. U.S.S.G. § 3B1.2(b). A defendant is a minor
participant if he “is less culpable than most other participants, but whose role could
not be described as minimal.” U.S.S.G. § 3B1.2, comment. (n.5).
The party seeking the downward departure bears the burden of establishing
that the defendant’s role was minor by a preponderance of the evidence. De
Varon, 175 F.3d at 939. In determining whether a mitigating role reduction is
warranted, a district court examines: (1) the defendant’s role against the relevant
conduct for which he was held accountable, and (2) the defendant’s role in
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comparison to the other participants. Id. at 940. The first prong assesses the
defendant’s actual role in comparison to the relevant conduct. Id. The district
court may consider any and all facts probative of the defendant’s role. Id. at 943.
Only if the defendant can establish that he played a minor role in the conduct for
which he has already been held accountable, not just a minor role in any larger
conspiracy, should the district court grant a downward adjustment for a minor role
in the offense. Id. at 944. The second prong compares the defendant’s role to the
roles played by his co-participants. Id. “The conduct of participants in any larger
criminal conspiracy is irrelevant.” Id. Notably, “a defendant is not automatically
entitled to a minor-role adjustment merely because [he] was somewhat less
culpable than the other discernable participants,” especially as it is possible that no
co-conspirator is a minor participant Id.
Escobar-Rivera pled guilty to possession and conspiracy to possess more
than 5 kilograms of cocaine, and admitted to the more than 2,400 kilograms of
cocaine transported in the offense when he did not object to the facts in the PSI.
See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (holding
defendant admits facts when he does not object to the PSI’s factual statements).
Escobar-Rivera was held accountable at sentencing for these facts. Based on the
close convergence between Escobar-Rivera’s conduct and the conduct for which he
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was held accountable, he has failed to meet the burden of the first prong. The
second prong compares the defendant’s role to the roles played by his co-
participants. De Varon, 175 F.3d at 944. Escobar-Rivera was one of many crew
members, each necessary to run the boat. Because Escobar-Rivera was a crew
member, like most of the other co-defendants, he was not less culpable than his co-
participants. The district court did not clearly err in determining that Escobar-
Rivera did not qualify for a minor-role reduction. Accordingly, its judgment is
AFFIRMED.
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