[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAY 15, 2007
                             No. 06-15069                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 05-00129-CR-FTM-29-SPC

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MAURO LUIS BADILLO LOZANO,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 15, 2007)

Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
      In December 2005, appellant and three other men were apprehended while

aboard a fishing vessel transporting more than 3,500 pounds of cocaine headed for

the United States. Appellant had agreed to take part in the voyage as the vessel’s

cook for a payment of $4,000, $2,000 of which he had received in advance. A

Middle District of Florida grand jury subsequently returned a two-count indictment

against appellant and the others charging them in Count One of 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 21 U.S.C. § 960(b)(1)(B)(ii), and in Count Two of conspiring to

possess 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), (j), and 21 U.S.C. § 960(b)(1)(B)(ii). Appellant pled guilty to both

counts pursuant to a plea agreement, and on September 5, 2006, the district court

sentenced him to concurrent prison terms of 135 months, at the low end of the

Sentencing Guidelines sentence range for a defendant with a criminal history

category I, i.e., 135-168 months.

      He now appeals, arguing that the district court erred (1) in calculating his

sentence range because it refused to adjust his offense level downward by two

levels, pursuant to U.S.S.G. § 3B1.2(b), for playing a minor role in the offenses,



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and (2) in imposing unreasonable sentences.

Minor-Role Adjustment

      We have “long and repeatedly held that a district court’s determination of a

defendant’s role in the offense is a finding of fact to be reviewed only for clear

error.” United States v. De Varon, 

, 937 (11th Cir. 1999) (en banc).

This is a fact-intensive inquiry and, “[s]o long as the basis of the trial court’s

decision is supported by the record and does not involve a misapplication of a rule

of law,” we rarely conclude that the district court’s determination is clearly

erroneous. 

      The Sentencing Guidelines provide for a downward adjustment of the

offense level “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, comment. (n.3). A defendant who “is less culpable than most other

participants, but whose role could not be described as minimal” is granted a two-

level adjustment as a minor participant. 

The defendant bears

the burden of proving a mitigating role in the offense by a preponderance of the

evidence. De 

.

      When determining a defendant’s role in the offense, the district court must

measure the defendant’s role against the relevant conduct attributed to the



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defendant. 

“[W]here the relevant conduct attributed to a defendant

is identical to [his] actual conduct, [he] cannot prove that [he] is entitled to a minor

role adjustment simply by pointing to some broader criminal scheme in which [he]

was a minor participant but for which [he] was not held accountable.” 

In many cases, this analysis will be dispositive, 

but, if it is not, the

district court may also measure the defendant’s role against other participants who

are identifiable 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.” 

court need not make any

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

the offense. 

       In the drug courier context, the amount of drugs involved is a material

consideration in the assessment of the defendant’s role and, in some circumstances,

may be a determinative factor. 

Other factors relevant to discerning the

defendant’s culpability include, but are not limited to: the “fair market value of

drugs, amount of money to be paid to the courier, equity interest in the drugs, role

in planning the criminal scheme, and role in the distribution.” 

       Here, appellant was held accountable for his actual conduct, which was

helping to transport 3,500 pounds of cocaine by serving as one of three crew



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members on a vessel carrying that quantity of cocaine. He did not meet his burden

to establish that he played a lesser role in transporting the drugs than the other two

crew members. Therefore, the district court did not clearly err by refusing to

reduce his offense level under U.S.S.G. § 3B1.1(2)(b).

Reasonableness

      “In reviewing the ultimate sentence imposed by the district court for

reasonableness, we consider the final sentence, in its entirety, in light of the [18

U.S.C.] § 3553(a) factors.” United States v. Martin, 

, 1237 (11th

Cir. 2006). The section 3553(a) factors include: (1) the nature and circumstances

of the offense and the history and characteristics of the defendant; (2) the need 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 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 advisory

guidelines range; (8) the need to avoid unwanted sentencing disparities; and (9) the

need to provide restitution to victims. The district court need not discuss each

factor or state on the record that it has explicitly considered each factor. United

States v. Talley, 

, 786 (11th Cir. 2005). An acknowledgment by the

district court that it has considered the defendant’s arguments and the § 3553(a)



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factors will suffice. 

review is deferential, and the burden of proving that the

sentence is unreasonable in light of the record and the § 3553(a) factors rests on the

party challenging the sentence. United States v. Wilks, 

, 1245 (11th

Cir. 2006), cert. denied, 

(2006). Although a sentence within the

Guidelines range will not be considered per se reasonable, “when the district court

imposes a sentence within the advisory Guidelines range, we ordinarily will expect

that choice to be a reasonable one.” 

.

      Appellant has not met his burden to establish that the district court imposed

unreasonable sentences. The record reflects that the court viewed the Sentencing

Guidelines as advisory and properly considered the purposes of sentencing as

reflected in 18 U.S.C. § 3553(a).

      AFFIRMED.




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