FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 5, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15363

Non-Argument Calendar

________________________

D. C. Docket No. 05-00207-CR-T-26-MAP

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ALVERO BENITO CAICEDO KASQUETE, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 5, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Alvero Benito Caicedo Kasquete (“Kasquete”) appeals his 108-

month concurrent sentences imposed after pleading guilty to: (1) conspiracy to
2

possess with intent to distribute five kilograms or more of cocaine while on board

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

§ 960(b)(1)(B)(ii) (Count 1); and (2) possession with intent to distribute five

kilograms or more of cocaine, in violation of 46 App. U.S.C. § 1903(a) & (g), 21

U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C. § 2. 

In May 2005, the United States Navy ship Rentz (“the Rentz”) was

patrolling in the Eastern Pacific Ocean. A helicopter dispatched from the Rentz

spotted a vessel and determined that it was the Colombian fishing vessel OFY

(“the OFY”). Naval officials tracked the OFY and observed it moving erratically

and changing its course multiple times. By the time the Rentz closed in on the

OFY, the OFY was engulfed in smoke and flames, and its eight crew members,

including Kasquete, boarded a smaller vessel. Law enforcement officials

extinguished the fire on the OFY and found 4,300 kilograms of cocaine concealed

in a hidden compartment. The officers then boarded the smaller vessel and

arrested the OFY’s crew members, including Kasquete. Ruceo Portocarrero

identified himself as the master of the OFY. 

On appeal, Kasquete argues that the district court erred in not granting him a

mitigating role reduction. He claims that he was just a crew member and did not

have any special skills. Kasquete dropped out of school when he was in second
 In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court excised 18 U.S.C. 1

§ 3742(e), which established standards of review on appeal. However, this Court has held that

pre-Booker standards for reviewing application of the Sentencing Guidelines (i.e., findings of fact

for clear error, and questions of law de novo) still apply post-Booker. United States v. Crawford,

407 F.3d 1174, 1177-78 (11th Cir. 2005).

3

grade because he was very poor. Shortly after his arrest, he cooperated with the

government. He claims that his role in the conspiracy was less significant than that

of the major drug traffickers and owners of the drugs, and he had limited

knowledge of the scope of the conspiracy. Kasquete concludes that he was just a

“nautical mule,” and not the owner of the drugs or the organizer of the conspiracy. 

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, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). 

1

Section 3B1.2 of the Sentencing Guidelines provides for a four-level decrease to a

defendant’s offense level if the defendant was a minimal participant in any

criminal activity and a two-level decrease if the defendant was a minor participant

in any criminal activity. U.S.S.G. § 3B1.2.

A defendant who is a minimal participant is one who is plainly among the

least culpable of those involved in the conduct of a group. U.S.S.G. § 3B1.2,

comment. (n.4). A defendant is a minor participant if he is less culpable than most

other participants, but whose role can not be described as minimal. U.S.S.G.
4

§3B1.2, comment. (n. 5). In determining a defendant’s mitigating role in the

offense, the district court “must measure the defendant’s role against the relevant

conduct for which [he] was held accountable at sentencing . . . [and] may also

measure the defendant’s role against the other participants, to the extent they are

discernable, in that relevant conduct.” De Varon, 175 F.3d at 945. “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). Where a drug

courier’s relevant conduct is limited to his own criminal act, a district court may

legitimately conclude that the courier played an important and essential role in that

crime. See DeVaron, 175 F.3d at 942-43. Furthermore, “the amount of drugs

imported is a material consideration in assessing a defendant’s role in [his] relevant

conduct.” See id. at 943. “[W]here the relevant conduct attributed to a defendant

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

[mitigating-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.” Id. at 941. 

Here, the record supports the district court’s finding that Kasquete’s role in

the relevant conduct was not minor or minimal. With respect to the first prong of

the DeVaron analysis, at sentencing, Kasquete was held accountable only for the
 The captain of the OFY, Portocarrero, received a two-level enhancement pursuant to

2

U.S.S.G. § 2D1.1(b)(2)(B) because he was the captain. (See United States v. Portocarrero, Case

No. 05-15448-CC) (a related case). 

5

4,300 kilograms of cocaine, a very large amount, which was the amount that the

OFY was transporting. Thus, Kasquete’s actual and relevant conduct were the

same, and, as such, the district court’s ruling was not clearly erroneous. 

With respect to the second prong of the DeVaron analysis, there is

insufficient evidence to show that Kasquete was a minor or minimal participant in

comparison to others. Here, the only persons identifiable from the evidence are

Kasquete and the seven other crew members of the OFY, one of whom was the

captain of the vessel. Kasquete offers no evidence in support of his claim that his 2

role was less significant than that of the major drug traffickers and owner of the

drugs. Additionally, Kasquete has provided no evidence that he was less culpable

than the other crew members of the OFY. Kasquete claims that he was no more

than a crew member and had no special skills, however, he has provided no

evidence showing that his responsibilities aboard the OFY were less vital to the

enterprise than those of any of the other crew members. To conclude, Kasquete

had the burden to prove he played a mitigating role, and the district court did not

clearly err in finding that he did not meet his burden. Therefore, we affirm his

sentence. 

AFFIRMED.