FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 May 23, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-15051

Non-Argument Calendar

________________________

D. C. Docket No. 06-00131-CR-T-24-TBM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

FRANCISCO JAVIER REYES, 

Defendant-Appellant. 
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No. 06-15070

Non-Argument Calendar

________________________

D. C. Docket No. 06-00131-CR-T-24-TBM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOSE SOTO, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 23, 2007)

Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:

Francisco Javier Reyes and Jose Soto were jointly charged with conspiracy

to possess with intent to distribute and possession with intent to distribute five or

more kilograms of cocaine while aboard a vessel subject to United States
 The appendix to Title 46 containing the subject provision was repealed effective 1

October 6, 2006, and reenacted as 46 U.S.C. §§ 70503 and 70506 with no relevant changes. 

See Pub. L. No. 109-304, 120 Stat. 1485.

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jurisdiction in violation of 46 U.S.C. App. § 1903(a), (g), and (j), 21 U.S.C. 1

§ 960(b)(1)(B)(ii), and 18 U.S.C. § 2. Reyes contends the district court erred by

denying him a minor-role reduction. Both Reyes and Soto contend their sentences

are greater than necessary and, therefore, unreasonable. We address each issue in

turn, and affirm Reyes’s and Soto’s sentences. 

I.

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). Under the first prong of determining a defendant’s role in the offense, the

district court must “measure the defendant’s role against [his] relevant conduct.” 

United States v. De Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). 

Although analysis under this first prong may be dispositive in the court’s

determination of the defendant’s role, under the second prong, the district court

may measure the defendant’s culpability in comparison to that of other participants

in the relevant conduct attributed to the defendant. Id. at 945.

The district court did not commit clear error in denying a minor-role

reduction to Reyes. See id. at 938 (holding we review the district court’s
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determination of a defendant’s role in the offense for clear error). Under the first

prong, because Reyes’s relevant conduct was possessing with intent to distribute

cocaine, he had to establish that he was a minor participant with respect to that

relevant conduct. See id. at 941. Reyes was held accountable for transporting

cocaine. His relevant conduct was identical to his actual conduct. Furthermore,

Reyes was held accountable for a large amount of drugs, over 2,000 kilograms, and

this alone could preclude him from receiving a minor role adjustment. See id. at

943 (“Therefore, we reaffirm that amount of drugs is a relevant factor and

recognize that under some circumstances it may be dispositive.”).

The second prong further precludes a minor role adjustment. Reyes’s

argument that his role should be compared to others in a larger conspiracy is

meritless because details concerning these others are not discernible from the PSI

or any evidence and are not part of the relevant conduct for which Reyes was

convicted. See id. at 944 (“First, the district court should look to other participants

only to the extent that they are identifiable or discernable from the evidence. . . .

Second, the district court may consider only those participants who were involved

in the relevant conduct attributed to the defendant.”). With respect to the other

participants in the relevant conduct, they were all part of the same conspiracy and

held accountable for the same amount of drugs. Even assuming the third crewman
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and captain had more knowledge or responsibility than Reyes, this did not

necessarily entitle him to a role reduction. See id. at 944 (“The fact that a

defendant’s role may be less than that of other participants engaged in the relevant

conduct may not be dispositive of role in the offense, since it is possible that none

are minor or minimal participants.”). Thus, Reyes was not less culpable than most

other participants in the conspiracy and the district court’s denial of a role

reduction was not clearly erroneous.

II.

When reviewing a sentence imposed by the district court, we must first

ensure the district court correctly calculated the Guidelines range. United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). The district court correctly

calculated both Reyes’s and Soto’s Guidelines ranges. 

Next, we review the sentence for reasonableness in light of the factors set

forth in 18 U.S.C. § 3553(a). Id. at 1246. A sentencing court is charged with

imposing a sentence that is “sufficient, but not greater than necessary” to reflect the

seriousness of the offense, afford deterrence, protect the public from further crimes

of the defendant, and provide the defendant with educational or vocational training,

medical care or other treatment. 18 U.S.C. § 3553(a)(2). Furthermore, under

§ 3553(a), a court should consider, inter alia, the nature and circumstances of the
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offense and the history and characteristics of the defendant, the kinds of sentences

available, the Sentencing Guidelines, and the need to avoid unwarranted sentencing

disparities between similar defendants. The district court does not need to

explicitly consider every factor from § 3553(a) on the record. United States v.

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

With regard to Reyes, the district court’s statements at sentencing indicate it

considered several of the factors. Specifically, the court expressly stated it had

considered (1) the nature and circumstances of the offense, (2) the need to reflect

the seriousness of the offense, and (3) the need for deterrence in order to protect

the public. 

With regard to Soto, the district court also considered several of the

§ 3553(a) factors. Considering the nature and circumstances of the offense, the

district court noted the large quantity of drugs involved. Furthermore, Soto

presented arguments regarding his past and his family situation, demonstrating the

court also considered his history and characteristics. With regard to the disparity

between Soto’s sentence and the third crewman, that crewman provided assistance

to the Government warranting a downward departure. Although Soto argues that

he should have received a similar sentence, he does not contend he was entitled to
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a departure based on his assistance. Therefore, the disparity was warranted. See

18 U.S.C. § 3553(a)(6).

Furthermore, the statutory maximum for Reyes and Soto was life

imprisonment. See 21 U.S.C. § 960(b)(1)(B)(ii). Reyes’s sentence of 135 months’

imprisonment and Soto’s sentence of 168 months’ imprisonment are below the

statutory maximum. See Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005)

(comparing the sentence imposed to the statutory maximum in determining its

reasonableness). Additionally, both Reyes and Soto were sentenced at the low end

of the advisory Guidelines range. While this does not make the sentence per se

reasonable, it is an indication of reasonableness. See United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). The district court accurately calculated the

Guidelines range, considered the § 3553(a) factors, and sentenced well below the

statutory maximum and at the low end of the advisory Guidelines range. We

conclude both Reyes’s and Soto’s sentences are reasonable.

AFFIRMED.