The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 13, 2007
No. 07-10993 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00365-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL VIVAS-MORENO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 13, 2007)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Joel Vivas-Moreno appeals his 135-month sentence imposed after he pled
guilty to conspiracy to possess with intent to distribute 5 kilograms or more of
cocaine while on board a vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. App. § 1903(a), (g), (j),1 and 21 U.S.C. § 960(b)(1)(B)(ii),
and possession with intent to distribute 5 kilograms or more of cocaine while on
board a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. App. § 1903(a) and (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii).
On August 24, 2006, the United States Coast Guard (“USCG”) boarded the Frutos
del Mar, a Colombian fishing vessel, in international waters. The USCG arrested
Vivas-Moreno, one of the eight crew members, after discovering 105 bales of
cocaine, weighing approximately 2,500 kilograms.
On appeal, Vivas-Moreno argues that he should have received a minor-role
reduction. He argues that there was no evidence that he owned, sold, or distributed
the drugs. Therefore, he argues that his role was minor in comparison to the
organization behind the production and distribution of the cocaine. He claims that
he was a simple deck hand who did nothing more than follow supervisory
directions to load and offload cocaine bales. He further contends that the district
court should have considered that he did not (1) own the drugs, (2) package the
1
The appendix to Title 46 containing the subject provisions was repealed effective
October 6, 2006 and was reenacted as 46 U.S.C. §§ 70503 and 70506, with no relevant changes.
See Pub. L. No. 109-134, 120 Stat. 1485 (2006).
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drugs, (3) purify the drugs, (4) book the vessel, (5) plan the trip, or (6) deliver the
product.
The district court’s determination of a defendant’s role in the offense is a
finding of fact that we review for clear error. United States v. Rodriguez De
Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).
The Guidelines provide for a downward adjustment of two to four levels
based on a defendant’s mitigating role in an offense. U.S.S.G. § 3B1.2. There is a
“range of adjustments for a defendant who plays a part in committing the offense
that makes him substantially less culpable than the average participant.” U.S.S.G.
§ 3B1.2 cmt. n.3(A). A four-level reduction for a minimal participant is warranted
for “defendants who are plainly among the least culpable . . . of a group.” U.S.S.G.
§ 3B1.2(a) cmt. n.4. A two-level reduction for a minor role is appropriate for a
defendant “who is less culpable than most other participants, but whose role could
not be described as minimal.” U.S.S.G. § 3B1.2(b) cmt. n.5. In Rodriguez De
Varon, 175 F.3d at 940-45, we established a two-part test to determine whether a
mitigating-role reduction is appropriate. The first prong is the defendant’s role in
the relevant conduct, and the second is the defendant’s role compared to other
participants in the relevant conduct. Id. at 940.
The district court did not clearly err in determining that Vivas-Moreno failed
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to qualify for a minor-role reduction under § 3B1.2. Because Vivas-Moreno’s
relevant conduct was limited to the amount of drugs he was helping to import, the
district court legitimately concluded that his role was not minor in relation to his
relevant conduct. In addition, the quantity of drugs involved in this case,
approximately 2,500 kilograms, weighed heavily against granting a minor-role
reduction.
The other identifiable participants in this case, a captain and six crew
members, engaged in the same conduct as Vivas-Moreno. Vivas-Moreno failed to
offer any evidence that he played a smaller role than the other six crew members.
Furthermore, the fact that Vivas-Moreno may have played a lesser role than the
captain does not entitle him to a minor-role reduction as, in some cases, there are
no minor participants. Finally, Vivas-Moreno’s focus on unidentified individuals
in the greater criminal scheme is irrelevant for purposes of assessing Vivas-
Moreno’s role vis-a-vis the other participants in the relevant conduct.
Accordingly, the district court did not clearly err in denying Vivas-Moreno a
minor-role reduction, and we affirm the sentence.
AFFIRMED.
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