FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 9, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15493

Non-Argument Calendar

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D. C. Docket No. 05-00099-CR-T-24-EAJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DAVID MAURILIO ZAPATA VELASQUEZ, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 9, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

David Maurilio Zapata Velasquez appeals his 135-month concurrent
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sentences imposed after he pled guilty to these offenses that took place while he

was aboard a vessel subject to the jurisdiction of the United States: (1) conspiracy

to possess with intent to distribute five kilograms or more of cocaine, in violation

of 21 U.S.C. § 960(b)(1)(B)(ii) and 46 U.S.C. app. § 1903(a), (g), (j); and

(2) possession with intent to distribute five kilograms or more of cocaine, in

violation of 18 U.S.C. § 2, 21 U.S.C. § 960(b)(1)(B)(ii), and 46 U.S.C. app.

§ 1903(a), (g). After review, we affirm Velasquez’s sentences.

I. BACKGROUND

In February 2005, a United States Coast Guard helicopter spotted and

eventually disabled the engine of a forty-foot “go-fast” boat in international waters

near Colombia. Upon boarding, the Coast Guard discovered 55 bales of cocaine in

the boat’s hold, with each bale containing 30 kilograms of cocaine for a total of

1,650 kilograms. The boat had four crew members. Velasquez, as the “load

guard” on the boat, was responsible for protecting the boat’s cargo. For his role,

Velasquez was promised $10,000, while two of his co-defendants were promised

$5,000.

Velasquez and his three co-defendants pled guilty to both counts. The

presentence investigation report (“PSI”) recommended a total offense level of 33

and a criminal history category of I, resulting in a recommended Guidelines range
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of 135 to 168 months’ imprisonment. Velasquez’s written objections to the PSI

argued that he should receive a mitigating role reduction. In overruling

Velasquez’s mitigating role objection, the district court noted that Velasquez was

being held accountable for only the drugs on board the go-fast boat, had the

additional responsibility of ensuring that the same amount of cocaine loaded onto

the boat was ultimately unloaded, was paid more than other crew members and was

involved in a significant amount of cocaine.

The district court adopted the Guidelines calculations in the PSI and noted

the advisory Guidelines range and the 18 U.S.C. § 3553(a) factors. With respect to

Velasquez’s request for a below-Guidelines-range sentence, the district court

pointed out that Velasquez’s background as a former Columbian military police

officer and his advanced education made his involvement in the offense atypical of

other defendants who were generally poor and had few options. The district court

ultimately stated that it did not think a non-Guidelines sentence was appropriate

“even considering those factors in your case,” and imposed concurrent 135-month

sentences, at the low end of the recommended Guidelines range. Velasquez timely

appealed.
Pursuant to U.S.S.G. § 3B1.2, a defendant is entitled to a four-point decrease in his offense

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level if he was a minimal participant, and a two-point decrease if he was a minor participant.

Whether a defendant qualifies for a decrease is “heavily dependent upon the facts of the particular

case.” U.S.S.G. § 3B1.2 cmt. n.3(C). A “minimal participant” is someone who is “plainly among

the least culpable of those involved in the conduct of a group.” Id. at cmt. n.4. A “minor

participant” is a person who is “less culpable than most other participants, but whose role could not

be described as minimal.” Id. at cmt. n.5.

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II. DISCUSSION

A. Mitigating Role

We review for clear error a district court’s determination of a defendant’s

qualification for a role reduction. United States v. De Varon, 175 F.3d 930, 937

(11 Cir. 1999) (en banc). The defendant has the burden of establishing his role in th

the offense by a preponderance of the evidence. Id. at 939. Two principles guide 1

a district court’s consideration: (1) the court must compare the defendant’s role in

the offense with the relevant conduct attributed to him in calculating his base

offense level; and (2) the court may compare the defendant’s conduct to that of

other participants involved in the offense. Id. at 940-45. When 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

scheme for which he was not held accountable. Id. at 941. In addition, “[t]he 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.” Id. at 944.
Velasquez’s argument that the district court erred when it failed to explicitly consider the 2

relevant factors in U.S.S.G. § 1B1.3(a) is without merit. “So long as the district court’s conclusion

as to defendant’s role in the offense is supported by the record, and the court has resolved any

disputed factual issues in conformity with Fed. R. Crim. P. 32(c)(1), a simple statement of the

district court’s conclusion is sufficient.” De Varon, 175 F.3d at 947.

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Here, the district court did not clearly err in denying Velasquez’s request for

a mitigating role reduction. Under the first prong of the De Varon test, the court

held Velasquez accountable for only the drugs aboard the go-fast boat. 

Velasquez’s actual and relevant conduct were the same, and he did not play a

minor role in that conduct. 

Under the second prong of De Varon, the record indicates that Velasquez

was the load guard, was paid $10,000, and guarded a large amount of cocaine. 

Given these facts, Velasquez was at least as culpable as his co-defendants, the

other members of the boat’s crew. See id. at 945 (listing as relevant factors, inter

alia, the amount of drugs involved, the amount of money the defendant was to be

paid and defendant’s role in the distribution). Accordingly, the district court

properly denied Velasquez a mitigating role reduction.2

B. Booker Reasonableness

After the Supreme Court’s decision in United States v. Booker, a district

court, in determining a reasonable sentence, must consider the advisory Guidelines

range and the sentencing factors in 18 U.S.C. § 3553(a). See 543 U.S. 220, 258-
The government argues that we should review only for plain error because Velasquez failed 3

to object to his sentence as unreasonable after it was imposed. We need not address this issue

because, even under a reasonableness standard, Velasquez’s appeal fails.

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63, 125 S. Ct. 738, 764-66 (2005); United States v. Talley, 431 F.3d 784, 786 (11th

Cir. 2005). We review a defendant’s sentence for unreasonableness in light of the

factors in § 3553(a) and the reasons given by the district court. United States v.

Williams, 435 F.3d 1350, 1354-55 (11 Cir. 2006). th 3

After review, we cannot say that Velasquez’s concurrent 135-month

sentences are unreasonable. The 135-month sentences are at the low end of the

advisory Guidelines range and below the statutory maximum term of life

imprisonment. See 21 U.S.C. § 960(b)(1). The district court noted Velasquez’s

more fortunate background and stated that there was no reason to impose anything

other than a Guidelines sentence. See 18 U.S.C. § 3553(a)(1) (including as a factor

to consider the defendant’s history and characteristics). The district court also

acknowledged Velasquez’s arguments based on the § 3553(a) factors, and stated

that it was nonetheless imposing a sentence within the advisory Guidelines range. 

See United States v. Scott, 426 F.3d 1324, 1329 (11 Cir. 2005) (concluding that th

Booker does not require the district court to discuss each § 3553(a) factor). 

Nothing in the record convinces us that Velasquez’s 135-month sentences are

unreasonable.

AFFIRMED.