FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 17, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-16444

Non-Argument Calendar

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D. C. Docket No. 05-00085-CR-T-30-TGW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CARLOS AGOSTO TUNORIO ARROYO, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (May 17, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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Carlos Agosto Tunorio Arroyo appeals his sentence for two drug trafficking

convictions. Arroyo argues that the district court clearly erred when it found

Arroyo was not a minor participant in the offense. See U.S.S.G. § 3B1.2(b). We

affirm.

On February 17, 2005, the U.S. Coast Guard stopped the fishing vessel

Ranger Yacht with Arroyo and several other crew members on board. The Coast

Guard discovered approximately 4309 kilograms of cocaine in a hidden

compartment. Each crew member was arrested and charged with conspiracy to

possess and possession with intent to distribute five kilograms or more of cocaine

while aboard a vessel subject to the jurisdiction of the United States, 46 U.S.C.

app. §§ 1903(a), (g), (j); 21 U.S.C. § 960(b)(1)(B)(ii).

Arroyo pleaded guilty to both counts of the indictment. At his sentencing

hearing, Arroyo admitted that he knew he would be participating in illegal activity

when he boarded the boat, he helped load cocaine onto the boat, and he was

promised payment of 35 million pesos for his participation. The Presentence

Investigation Report calculated a base offense level of 38, see U.S.S.G. § 2D1.1(c),

and recommended a decrease of two levels under the “safety valve” provision, see

U.S.S.G. § 2D1.1(b)(7) (2005), and a three-level decrease for acceptance of

responsibility, see U.S.S.G. § 3E1.1. Arroyo’s total offense level was 33, with a
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criminal history category of I; his guidelines sentencing range was 135 to 168

months of imprisonment.

Arroyo admitted the factual account of the Presentence Investigation Report,

but he argued that he was entitled to a two-level decrease for having a minor role in

the offense. See U.S.S.G. § 3B1.2. The district court disagreed and found that

Arroyo “played more than a minor role in the offense and is therefore not entitled

to the two-level reduction.” The district court sentenced Arroyo to 135 months of

imprisonment.

“[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, 175

F.3d 930, 937 (11th Cir. 1999) (en banc). The guidelines define “minor

participant” as one “who is less culpable than most other participants, but whose

role could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. n.5. “The

defendant bears the burden of proving his minor role by a preponderance of the

evidence.” United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002). “Only 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—should the district court grant a downward adjustment for

minor role in the offense.” De Varon, 175 F.3d at 944.
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Arroyo admitted that he was a crew member on the Ranger Yacht, and he

presented no evidence that the other crew members had a more active role in the

criminal activity than Arroyo. Arroyo’s argument in favor of the departure for

being a minor participant was limited to the comments of his counsel, which is

insufficient to support a departure. See United States v. Kapelushnik, 306 F.3d

1090, 1095 (11th Cir. 2002). The district court did not clearly err when it found

Arroyo was not a minor participant in the offense.

AFFIRMED.