[DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                 FILED
                                                     U.S. COURT OF APPEALS
                           No. 10-12266                ELEVENTH CIRCUIT
                       Non-Argument Calendar               MAY 10, 2011
                     ________________________               JOHN LEY
                                                             CLERK
             D.C. Docket No. 8:09-cr-00415-JSM-TGW-1

UNITED STATES OF AMERICA,
                                          lllllllllllllllllllllPlaintiff-Appellee,
                              versus
JOSE HECTOR CRUZ,
                                       lllllllllllllllllllllDefendant-Appellant.
                     ________________________

                           No. 10-12326
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 8:09-cr-00415-JSM-TGW-3


UNITED STATES OF AMERICA,
                                          lllllllllllllllllllllPlaintiff-Appellee,
                              versus
VALENTIN LOZANO ALVAREZ,
                                       lllllllllllllllllllllDefendant-Appellant.
                            _______________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (May 10, 2011)

Before MARCUS, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Jose Hector Cruz and Valentin Lozano Alvarez appeal their 70-month total

sentences imposed after they pled guilty to one count of conspiracy to possess with

intent to distribute at least 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 846

and 841(a)(1) and (b)(1)(A)(ii), and one count of aiding and abetting one another to

possess with intent to distribute at least 5 kilograms of cocaine, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(A)(ii), and 18 U.S.C. § 2. Both Cruz and Alvarez

appeal the district court’s denial of their requests for mitigating-role reductions,

pursuant to U.S.S.G. § 3B1.2. Cruz also appeals his 70-month total sentence, which

was at the bottom of his applicable guideline range, as substantively unreasonable.

After thorough review, we affirm.

      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, 

, 937

(11th Cir. 1999) (en banc). We review the substantive reasonableness of a sentence

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imposed by the district court for abuse of discretion. United States v. Pugh, 

, 1189-90 (11th Cir. 2008).

      First, we reject the claim by Cruz and Alvarez that the district court clearly

erred when it denied their requests for mitigating-role reductions, pursuant to

U.S.S.G. § 3B1.2. Section 3B1.2 of the Guidelines permits a mitigating-role

adjustment to the guidelines range for a defendant who is substantially less culpable

than the average participant. U.S.S.G. § 3B1.2, comment. (n.3). The sentencing court

may decrease a defendant’s offense level by four points if the court finds the

defendant was a minimal participant, or by two points if the court finds the defendant

was a minor participant. U.S.S.G. § 3B1.2(a) and (b). A minimal participant is

“plainly among the least culpable of those involved in the conduct of the group.”

U.S.S.G. § 3B1.2, comment. (n.4). A minor participant is one who “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 mitigating role reduction

bears the burden of establishing that the defendant’s role was minimal or minor by

a preponderance of the evidence. De 

.

      In determining whether a mitigating-role reduction is warranted, a district court

performs a two-prong analysis examining: (1) the defendant’s role in 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. 

Under the mandatory 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.” 

The district court must consider all of the facts probative

of the defendant’s role. 

In the drug courier context, relevant facts include,

but are not limited to: the amount of drugs, their fair market value, the amount of

money to be paid to the courier, an equity interest in the drugs, a role in planning the

scheme, and the role in the distribution. 

Moreover, the drug quantity

“may be the best indication of the magnitude of the courier’s participation.” 

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. 

944.

      Under the second prong, the district court may also assess a defendant’s

culpability in comparison to “other participants in the relevant conduct.” 

The district court may only consider participants who are “identifiable or discernable

from the evidence,” and “who were involved in the relevant conduct attributed to the

defendant.    The conduct of participants in any larger criminal conspiracy is

irrelevant.” 

is not automatically entitled to a minor role

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adjustment merely because [he] was somewhat less culpable than the other

discernable participants.” 

fact that a defendant’s role may be

less than that of other participants engaged in the relevant conduct may not be

dispositive of [the] role in the offense, since it is possible that none are minor or

minimal participants.” 

for the defendant to receive a minor-role

adjustment, “the district court must determine that the defendant was less culpable

than most other participants in [the] relevant conduct.” 

no presumption

that drug couriers are never minor or minimal participants, or that they are always

minor or minimal. 

Moreover, “a district court is not required to make any

specific findings other than the ultimate determination of the defendant’s role in the

offense.” 

      With regard to the mandatory first prong of the De Varon analysis, the record

indicates that Cruz and Alvarez were held accountable for possessing and conspiring

with their codefendant Jesus Alvarez (“Jesus”) to distribute five kilograms of cocaine.

Although Cruz and Alvarez argued that they were unaware of the scope of the

criminal enterprise, as Cruz’s role was strictly to drive the truck pursuant to the

direction of his codefendant and Alvarez’s role was merely that of a simple courier,

Cruz admitted that he knew that there was at least five kilograms of cocaine in the

truck, and neither Cruz nor Alvarez objected to the amount of drugs attributed to them

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or to the other facts in the PSI. Further, the district court stated that it didn’t “believe

[Cruz’s] testimony that he didn’t have any idea how much the drugs cost or how

much they were sold for,” and the court found that Cruz, Alvarez and Jesus were all

three involved in the cocaine-transaction business and had “divide[d] the profits.”

Finally, Alvarez’s argument, that his role was relatively minor when compared to the

“many unapprehended . . . members of the larger drug distribution conspiracy,” is

without merit because Alvarez was only held accountable for the five kilograms of

cocaine that he possessed at the time of his arrest, and because under DeVaron, a

minor-role reduction is proper “[o]nly if the defendant can establish that [he] played

a relatively minor role in the conduct for which [he] has already been held

accountable -- not a minor role in any larger criminal conspiracy. . .” 

Thus, under the first prong, neither Cruz’s nor Alvarez’s role was minor in relation

to the relevant conduct for which they were held accountable.

       Regarding the second prong of the De Varon analysis, the participants

discernable from the evidence and involved in the relevant conduct were Cruz,

Alvarez and Jesus. However, as noted above, the court found that based on the

evidence, Cruz and Alvarez had participated in the cocaine-transaction business and

had split the proceeds equally with his codefendants. Although Jesus may have had

knowledge as to when and where to transport the cocaine, the record does not

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indicate, and Cruz and Alvarez have not established, that the roles of the three

codefendants differed in any real way. Moreover, we do not presume that a drug

courier plays a minor role in a drug distribution conspiracy. 

In short,

neither Cruz nor Alvarez has shown that he was not substantially less culpable than

the average participant or even less culpable than most other participants in the

criminal enterprise. Accordingly, the district court did not clearly err in determining

that Cruz and Alvarez did not qualify for mitigating-role reductions. See 

944.

       We also find no merit to Cruz’s argument that his 70-month total sentence is

substantively unreasonable. We must consider the “‘substantive reasonableness of

the sentence imposed under an abuse-of-discretion standard,’” based on the “‘totality

of the circumstances.’” 

(quoting Gall v. United States, 

, 51 (2007)). This review is “deferential,” requiring us to determine “whether

the sentence imposed by the district court fails to achieve the purposes of sentencing

as stated in section 3553(a).”1 United States v. Talley, 

, 788 (11th Cir.

       1
          The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

                                                 7
2005). “The weight to be accorded any given § 3553(a) factor is a matter committed

to the sound discretion of the district court, and we will not substitute our judgment

in weighing the relevant factors.” United States v. Amedeo, 

, 832 (11th

Cir. 2007) (quotation and brackets omitted). We will “vacate the sentence if, but only

if, we are left with the definite and firm conviction that the district court committed

a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence

that lies outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Irey, 

, 1190 (11th Cir. 2010) (en banc) (quotation

omitted), cert. denied, __ S. Ct. __, 

(U.S. Apr. 4, 2011) (No.

10-727). “The party challenging the sentence bears the burden to show it is

unreasonable in light of the record and the § 3553(a) factors.” United States v. Tome,

, 1378 (11th Cir. 2010), cert. denied, 

(2010).

“[O]rdinarily, we would expect a sentence within the Guidelines range to be

reasonable.” United States v. Chavez, 

, 1365 (11th Cir. 2009)

(quotation omitted), cert. denied, 

(2010).

      Here, Cruz’s total sentence was not substantively unreasonable because the

district court considered the comments of Cruz and his attorney, the PSI, and the 18

U.S.C. § 3553(a) sentencing factors in determining that “the sentence imposed is

sufficient but not greater than necessary to comply with the statutory purposes of

                                          8
sentencing.” Although the court did not find that Cruz was entitled to a mitigating-

role reduction pursuant to U.S.S.G. § 3B1.2, the court’s decision to impose a sentence

at the bottom of the guidelines range suggests that it considered Cruz’s arguments in

mitigation. Additionally, because Cruz’s total sentence was at the bottom of the

advisory guidelines range, especially given the seriousness of the offenses, and the

fact that the court stated that it did not “believe [Cruz’s] testimony that he didn’t have

any idea how much the drugs cost or how much they were sold for,” Cruz has not met

his burden to show that the sentence was unreasonable. Moreover, a sentence within

the guidelines range, while not presumed reasonable, is accorded an expectation of

reasonableness. 

. Thus, the district court did not violate the

purpose of § 3553(a) in imposing a low-end guideline range sentence based on the

totality of the circumstances. 

.

      AFFIRMED.




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