[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            September 17, 2007
                             No. 07-10417                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 06-00380-CR-T-26-EAJ

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

HAROLD GARCIA-OLAVE,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                          (September 17, 2007)


Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Harold Garcia-Olave appeals his sentence imposed after his plea of guilty to

conspiracy and possession with intent to distribute five 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), and (j). On appeal, Garcia-Olave

contends the district court erred at sentencing by denying him a mitigating-role

reduction. In particular, Garcia-Olave argues the Sentencing Guidelines did not

preclude him from receiving a mitigating-role reduction, and the district court

should have compared his role to the roles of the participants in the larger

conspiracy who evaded arrest.

      Although the Sentencing Guidelines are advisory, a district court must

calculate the Guidelines range correctly and must consider it when determining a

defendant’s sentence. United States v. Crawford, 

, 1178-79 (11th

Cir. 2005). A district court’s determination of a defendant’s role in an offense is a

finding of fact, which we review for clear error. United States v. De Varon, 

, 934 (11th Cir. 1999) (en banc).

      Section 3B1.2 of the Guidelines permits a mitigating-role adjustment to the

applicable Guidelines range for a defendant who is substantially less culpable than

the average participant due to a minor or mitigating role. U.S.S.G. § 3B1.2, cmt.




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n.3. The defendant bears the burden of establishing that his or her role was

minimal or minor by a preponderance of the evidence. De 

.

      In determining whether a defendant meets the burden of demonstrating a

mitigating role, a district court examines (1) the defendant’s role based on the

relevant conduct for which he was held accountable, and (2) the defendant’s role in

comparison to the other participants. 

The district court may consider

any and all 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, and the role in the

distribution. 

The defendant must establish that he played a minor role

in the conduct for which he has been found guilty and not just a minor role in the

larger conspiracy. 

944. Therefore, the district court may only

assess a defendant’s culpability in comparison to “other participants in the relevant

conduct.” 

That is those who are “identifiable or discernable from the

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

defendant.” 

of participants in any larger criminal conspiracy is

irrelevant.” 

case, the record shows that Garcia-Olave was held accountable for

4,000 kilograms of cocaine and admitted to expecting to receive more than $10,000



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for his services. The record demonstrates he played an active role in protecting the

large amount of cocaine. In addition, Garcia-Olave did not introduce any evidence

of the roles played by the other nine crew members. Based on the amount of

cocaine, Garcia-Olaves’ role in protecting it, and the lack of evidence comparing

his role to the roles of the other nine crew members, we cannot say the district

court erred in finding Garcia-Olave did not have a mitigating or minor role

deserving of an adjustment to his advisory Guidelines range. See De 

, 944. Accordingly, we affirm.

      AFFIRMED.




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