FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 30, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12376

Non-Argument Calendar

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D. C. Docket No. 04-00438-CR-CAP-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

OLANREWAJU ETISAN OLORUNTOBA, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(January 30, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

On November 4, 2004, appellant, a narcotics courier, pled guilty to both
 Appellant brought the subject drugs into the United States on a flight from Caracas, 1

Venezuela to Atlanta, Georgia. The drugs were in 65 pellets he had swallowed. Appellant was

taken to an Atlanta hospital where he expelled the pellets. The weight of the heroin was 830.9

grams.

2

counts of an indictment: Count One, possession with intent to distribute at least

700 grams of a mixture or substance containing heroin, in violation of 21 U.S.C. §

841(a)(1), and Count Two, importing the same 700 grams into the United States, in

violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(A). On April 14, 2005, the district 1

court sentenced appellant to concurrent prison terms of 63 months. He now

appeals his sentences, contending that the district court, in determining his offense

level, erred in denying him a minor-role reduction pursuant to U.S.S.G. § 3B1.2(b). 

At his sentencing hearing, appellant argued that he was entitled to a minorrole reduction because he was not paid a great amount of money in comparison to

the value of the drugs involved, and there might have been other individuals in

London, Nigeria, and Atlanta who were more culpable than he was for smuggling

the drugs. Thereafter, the following exchange took place: 

[Court]: . . . I don’t think that a person that’s done what he

has done in this case can just be given a minor

role. I mean, I understand your position with

respect to this.

[Defense counsel]: Can I ask, is it - -

[Court]: He is the importer.

[Defense counsel]: I want to clarify this. That because he is the

person doing the importation, never can he be [sic]

a minor role? Anybody that imports, physically
3

imports can never get a minor role under the

importation statute?

[Court]: Yeah. I’ll go there.

[Defense counsel]: Thank you.

[Court]: All right.

[Government]: Judge, for the record, and anticipating an appeal

from [the defendant].

[Defense counsel]: Correct.

[Government]: With respect to the role of the other participants in

this conspiracy, is the Court finding that the

defendant hasn’t shown that he had any lesser role

than these other people who he has identified?

[Court]: I agree with that statement. I think your point is

well-taken. I’ll agree with that.

“The district court’s interpretation of the sentencing guidelines is subject to

de novo review on appeal, while its factual findings must be accepted unless

clearly erroneous.” United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005)

(quotations and citations omitted), cert. denied, (U.S. Dec. 5, 2005) (No. 05-7380). 

Specifically, we review the district court’s determination of a defendant’s role in

the offense for clear error. See United States v. De Varon, 175 F.3d 930, 937 (11th

Cir. 1999). A defendant “who is less culpable than most other participants, but

whose role could not be described as minimal” is entitled to a two-level reduction

for his minor role. U.S.S.G. § 3B1.2(b), comment. (n. 5). “The proponent of the

downward adjustment . . . always bears the burden of proving a mitigating role in

the offense by a preponderance of the evidence.” De Varon, 175 F.3d at 939. In

determining the defendant’s role, the decision falls within the sound discretion of
4

the district court: “a trial court’s choice between ‘two permissible views of the

evidence’ is the very essence of the clear error standard of review.” Id. at 945. As

long as the district court’s decision is supported by the record, the sentencing judge

need not make specific subsidiary factual findings regarding the defendant’s role in

the offense. Id. at 939. Lastly, harmless error is applied to sentencing cases, and

remand is unnecessary, if the party defending the sentence persuades us that the

district court would have imposed the same sentence absent the district court’s

error. See United States v. Williams, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120,

117 L.Ed.2d 341 (1992). 

In De Varon, we established a two-part test to determine whether a

mitigating-role reduction is appropriate. See De Varon, 175 F.3d at 940-45. In

applying the first prong, “the district court must measure the defendant's role

against the relevant conduct for which [he] has been held accountable.” Id. at 940. 

“[W]hen a drug courier’s relevant conduct is limited to [his] own act of

importation, a district court may legitimately conclude that the courier played an

important or essential role in the importation of those drugs.” Id. at 942-43. 

Furthermore, “in the drug courier context, [] the amount of drugs imported is a

material consideration in assessing a defendant's role in [his] relevant conduct.” 

Id. at 943 (citation omitted). 
5

In the second prong of the De Varon analysis, the district court may assess a

defendant’s relative culpability vis-a-vis “other participants in the relevant

conduct.” Id. at 944. “The conduct of participants in any larger criminal

conspiracy is irrelevant.” Id. However, “[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 [his] role in the offense, since it is possible that none are minor or

minimal participants.” Id. 

Where, as here, a defendant does not challenge the factual statements in the

presentence investigation report (“PSI”), he admits to those facts. See United

States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (citations omitted). 

Furthermore, a defendant’s allegations made during sentencing are insufficient on

their own to warrant a minor-role reduction. See United States v. Kapelushnik,

306 F.3d 1090, 1095 (11th Cir. 2002) (citations omitted) (holding that defense

counsel’s mere allegations during sentencing did not constitute a sufficient

evidentiary basis upon which to grant a downward departure under the sentencing

guidelines). 

The record in this case supports the district court’s denial of a minor-role

reduction because appellant offered no factual basis upon which to conclude that

his actual conduct was any different than the relevant conduct for which he was
6

held accountable. See De Varon, 175 F.3d at 940-41. First, he failed to object to

the presentence report, and thus admitted that he imported at least 700 grams of

heroin. See Shelton, 400 F.3d at 1330. Second, his mere allegations that he was

not paid a great amount of money in comparison to the value of the drugs, and that

others may have been more culpable than him for smuggling the drugs, are

insufficient to prove that he was entitled to a minor-role reduction. See

Kapelushnik, 306 F.3d at 1095. Thus, the court did not clearly err in finding that

he had failed to meet either prong of the mitigating role test, and was thus not

qualified for a minor-role reduction. See De Varon, 175 F.3d at 939; U.S.S.G.

§ 3B1.2(b), comment. (n. 5). 

To the extent that the court erred in holding, as a matter of law, that a drug

courier can never qualify for a minor-role reduction, this error is harmless because

appellant had otherwise failed to establish eligibility for the reduction. See

Williams, 503 U.S. at 203, 112 S.Ct. At 1120. 

AFFIRMED.