The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13857 March 20, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-20325-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMIAN FERNANDEZ-TELLEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 20, 2008)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Damian Fernandez-Tellez appeals from his 57-month sentence, imposed
after he pled guilty to conspiracy to possess with the intent to distribute 500 grams
or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. On appeal, Fernandez-Tellez argues that he should have
received a minor-role reduction because in comparison to the other participants in
the methamphetamine distribution conspiracy, he was “clearly a comparatively . . .
minor participant in the offense.” After thorough review, we affirm.
We review a district court’s factual findings regarding a defendant’s role in
the offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). “The proponent of the downward adjustment . . . always bears the
burden of proving a mitigating role in the offense by a preponderance of the
evidence.” Id. at 939. In determining the defendant’s role, the decision falls
within the sound discretion of the district court: “a trial court’s choice between two
permissible views of the evidence is the very essence of the clear error standard of
review.” Id. at 945 (internal quotation and citation omitted). As long as the district
court’s decision is supported by the record and the district court clearly resolves
any disputed facts, the sentencing judge need not make specific subsidiary factual
findings regarding the defendant’s role in the offense. Id. at 939.
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
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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. The
determination of whether to apply the reduction is fact-based, and the court need
not apply the adjustment “based solely on the defendant’s bare assertion.”
U.S.S.G. § 3B1.2 cmt. n.3(C).
In De Varon, 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. 175 F.3d at 940. In applying the first prong,
“the district court must assess whether the defendant is a minor or minimal
participant in relation to the relevant conduct attributed to the defendant in
calculating [his] base offense level.” Id. at 941. Thus, the court only may consider
criminal conduct for which the defendant was held accountable. Id. For a drug
offense, the court may not consider the “greater drug conspiracy,” but only the
conduct that determined the defendant’s base offense level. See id. at 942.
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In De Varon’s second prong, the district court also can assess a defendant’s
relative culpability vis-a-vis “other participants in the relevant conduct.” Id. at
944. The district court only may consider participants who are “identifiable or
discernable from the evidence,” and “[t]he conduct of participants in any larger
criminal conspiracy is irrelevant.” Id. Even if a defendant’s role is “less than that
of other participants engaged in the relevant conduct,” he may not be entitled to an
adjustment because, in some cases, there are no minor or minimal participants. Id.
To apply the adjustment, the district court must find that “the defendant was less
culpable than most other participants in [his] relevant conduct.” Id.
In this case, Fernandez-Tellez argues that the district court erred by denying
him a minor-role adjustment. Fernandez-Tellez argues that he was not as culpable
as co-conspirator Leticia Valdes and was “the low man on the [t]otem [p]ole” with
respect to the larger conspiracy. He says that his role was confined to being
present when Valdes entered an undercover police car, tested the drugs, and
determined that they were not of high quality. In addition, he argues that Valdes
had the name of a drug supplier in her pocket when they were arrested, clearly
indicating his minor role.
The district court did not clearly err in determining that Fernandez-Tellez
failed to qualify for a minor-role reduction under § 3B1.2. Contrary to Fernandez-
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Tellez’s argument, the district court should not consider the “greater drug
conspiracy,” but rather only the conduct that determined Fernandez-Tellez’s base
offense level. De Varon, 175 F.3d at 942. The district court reduced Fernandez-
Tellez’s base offense level to ensure that he was only being held responsible for the
360 grams of methamphetamine involved in his transaction with the undercover
police officers. Fernandez-Tellez admitted that he inspected the 360 grams of
methamphetamine. Since Fernandez-Tellez’s relevant conduct was limited to the
amount of drugs involved in the undercover operation, the district court did not
clearly err in concluding that his role was not minor in relation to his relevant
conduct. De Varon, 175 F.3d at 942-43.
In addition, Fernandez-Tellez points to only one identifiable participant,
Valdes, for purposes of comparison. But even if Fernandez-Tellez’s role was less
than that of Valdes, he is not automatically entitled to an adjustment, particularly
where, as here, they performed essentially the same tasks and there were no minor
or minimal participants. See De Varon, 175 F.3d at 944. Thus, the district court
did not clearly err in denying Fernandez-Tellez a minor-role reduction.
Accordingly, we affirm Fernandez-Tellez’s sentence.
AFFIRMED.
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