FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 4, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15683

Non-Argument Calendar

________________________

D. C. Docket No. 05-00084-CR-2-WBH-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOSE JESUS ALVAREZ-CORIA, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(May 4, 2006)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:

After pleading guilty, Jose Jesus Alvarez-Coria appeals his 86-month
Because Alvarez-Coria referred to a number of people involved in the conspiracy as 1

“Primo,” the PSI numbered them for clarity.

2

sentence for (1) conspiracy to possess with the intent to distribute at least 500

grams of methamphetamine and at least 500 grams of cocaine, in violation of

21 U.S.C. §§ 963 and 841(b)(1)(A)(ii) and (viii); (2) attempting to possess with the

intent to distribute at least 500 grams of methamphetamine, in violation of 21

U.S.C. §§ 846 and 841(b)(1)(A)(viii); and (3) attempting to possess with the intent

to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A)(ii). After review, we affirm.

I. BACKGROUND

Alvarez-Coria, his co-defendant Roberto Zavala and a third man, Jose Nabil

Dager, were arrested in Atlanta, Georgia after they were caught trying to transport

9 kilograms of cocaine and 46 kilograms of methamphetamine from Texas to

Georgia. According to Alvarez-Coria’s Presentence Investigation Report (“PSI”)

and his plea colloquy, Alvarez-Coria was introduced by his wife’s cousin to people

involved in drug sales. One of these individuals, called “Primo1,” asked Alvarez- 1

Coria to deliver drugs from San Juan, Texas to Atlanta, Georgia in exchange for

$3,000 to $4,000. 

Alvarez-Coria met with Zavala and another man, Isidor Saldivar (referred to

as “Primo2”), at a church, where they discussed finding a driver for the delivery. 
3

Zavala located a driver, who turned out to be a Confidential Source (“CS”) for the

San Benito, Texas police department. The CS informed investigators that he had

been asked to drive 56 kilograms of cocaine to Atlanta.

On January 25, 2005, Alvarez-Coria, Zavala and Saldivar met at a restaurant

parking lot. Saldivar gave Zavala the vehicle containing the drugs to deliver to the

CS. Alvarez-Coria gave Zavala his truck and instructed him to give the truck to

the CS as collateral for payment for the trip to Atlanta. Once the CS returned from

Atlanta, the CS could exchange the truck for his payment.

After receiving the vehicle containing the drugs from Zavala, the CS drove it

to investigators, who found three large plastic containers with 47 bundles of

methamphetamine and 9 bundles of cocaine. The Drug Enforcement Agency

planned a controlled delivery and flew the drugs and some agents to Atlanta to set

up surveillance and complete the transaction.

The CS transported the vehicle to Atlanta on January 26, 2005. AlvarezCoria, Zavala and Dager also drove to Atlanta and checked into a hotel. On the

morning of January 27, 2005, Alvarez-Coria, at Primo1’s instruction, met with an

individual identified as Primo3, who told Alvarez-Coria to swap cars and that

someone would meet Alvarez-Coria after he had obtained the drugs. AlvarezCoria and Zavala then met the CS at a restaurant. After a brief conversation, they
4

left the restaurant and drove to a Sam’s Club parking lot, where they transferred

the three containers from the CS’s vehicle to Alvarez-Coria’s vehicle. AlvarezCoria left the CS and Zavala and drove the vehicle with the containers across the

street to a gas station, where he was supposed to meet an unidentified person and

follow that person to an unknown location and deliver the drugs. Alvarez-Coria

and Zavala were then arrested.

In his post-arrest statement, Alvarez-Coria admitted traveling from Texas

with Dager and stated that, although he did not know why they were traveling to

Georgia, he knew it was related to drugs. According to Alvarez-Coria, he and

Zavala were instructed by Dager to pick up the containers. Alvarez-Coria admitted

knowing the containers held drugs, but stated that he did not know what kind. 

Alvarez-Coria’s indictment charged him with, inter alia, conspiring to

distribute both cocaine and methamphetamine. At his plea colloquy, AlvarezCoria again admitted that he knew the three containers had contained drugs, but

that he thought the drugs were cocaine and not methamphetamine. Alvarez-Coria

pled guilty to all three counts in the indictment, but reserved his right to challenge

the weight and type of drugs attributed to him at sentencing.

At sentencing, over Alvarez-Coria’s objection, the district court held

Alvarez-Coria responsible for the 46 kilograms of methamphetamine and the 9
The district court adopted the PSI’s calculation of Alvarez-Coria’s base offense level 2

pursuant to U.S.S.G. § 2D1.1(c)(1) (2004) using a combined marijuana equivalency of 935,406.4

kilograms. The Drug Quantity Table in § 2D1.1(c)(1) sets a base offense level of 38 for at least

30,000 kilograms or more of marijuana equivalency. The PSI noted that the quantity of

methamphetamine (933,600 kilograms of marijuana equivalency) was over thirty times the

amount needed to achieve an offense level of 38.

5

kilograms of cocaine found in the three containers. The district court also denied 2

Alvarez-Coria’s request for a minor role reduction. With an adjusted offense level

of 33 and a criminal history category of I, Alvarez-Coria’s advisory Guidelines

range was 135 to 168 months’ imprisonment. The district court concluded that,

because Alvarez-Coria was entitled to a safety-valve reduction, he was not subject

to the mandatory minimum ten-year sentence.

In arriving at a reasonable sentence, the district court considered the

advisory Guidelines range and the factors in 18 U.S.C. § 3553(a). The district

court noted, among other things, that there was no evidence Alvarez-Coria knew

that the conspiracy in which he was participating involved methamphetamine and

that Alvarez-Coria’s participation in the conspiracy came close to a minor role. 

The district court imposed an 86-month sentence. This appeal followed.

II. DISCUSSION

A. Minor Role Reduction

On appeal, Alvarez-Coria argues that the district court clearly erred in failing

to grant him a minor role reduction. We review for clear error a district court’s
Pursuant to U.S.S.G. § 3B1.2, the defendant is entitled to a four-point decrease in his 3

offense 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.

6

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). 

th

The defendant has the burden of establishing his role in the offense by a

preponderance of the evidence. Id. at 939. Two principles guide a district court’s 3

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.

The district court did not clearly err in refusing to grant Alvarez-Coria a

minor role reduction. With respect to the first prong of De Varon, Alvarez-Coria
7

was held accountable for only the drugs found in the three plastic containers that

Alvarez-Coria admitted conspiring to transport to Atlanta. Therefore, AlvarezCoria’s actual and relevant conduct were the same and he did not play a minor role

in that conduct.

With respect to the second prong of De Varon, the record indicates that

Alvarez-Coria was at least as culpable as Zavala. Furthermore, Alvarez-Coria

presented no evidence showing that his responsibilities during the trip were less

important to the conspiracy than those of Zavala or Dager. Alvarez-Coria gave

Zavala his truck to deliver to the CS as security until the transaction was

completed. Those arguably higher up in the conspiracy, including Primo1, Primo2

and Primo3, often communicated with Alvarez-Coria and coordinated some of the

co-conspirators’ movements through him. More importantly, unlike Zavala and

Dager, Alvarez-Coria was entrusted with driving the drugs away after the

rendezvous with the CS. Therefore, Alvarez-Coria was not entitled to a minor role

reduction.

B. Alvarez-Corio’s Knowledge of Drug Type

In calculating Alvarez-Coria’s base offense level under the Sentencing

Guidelines, the district court held Alvarez-Coria responsible for the

methamphetamine found in the three containers. Alvarez-Coria argues that the
We review a sentencing court’s factual findings for clear error and its application of the 4

Sentencing Guidelines to those facts de novo. United States v. Jackson, 276 F.3d 1231, 1233

(11 Cir. 2001). th

8

district court clearly erred in doing so because Alvarez-Coria had not agreed to

transport methamphetamine and could not have reasonably foreseen that he would

be entrusted with delivering methamphetamine. We disagree.

4

Under U.S.S.G. § 1B1.3, the district court must consider “relevant conduct”

when calculating a defendant’s base offense level, including “all acts and

omissions committed, aided, abetted, counseled, commanded, induced, procured,

or willfully caused by the defendant . . . .” U.S.S.G. § 1B1.3(a)(1)(A) (2004). A

defendant’s accountability under subsection (a)(1)(A) is not limited by what is

reasonably foreseeable because the reasonable foreseeability requirement only

applies to the conduct of others. U.S.S.G. § 1B1.3, cmt. n.2. As an example of

conduct for which the defendant is held accountable, the commentary to § 1B1.3

notes that “a defendant who transports a suitcase knowing that it contains a

controlled substance . . . is accountable for the controlled substance in the suitcase

regardless of his knowledge or lack of knowledge of the actual type or amount of

that controlled substance.” U.S.S.G. § 1B1.3, cmt. n.2(a)(1).

Similarly, this Court has “consistently recognized deliberate ignorance of

criminal activity as the equivalent of knowledge.” United States v. Prather, 205
9

F.3d 1265, 1270 (11 Cir. 2000) (citation omitted) (reviewing a deliberate th

indifference jury instruction). We have applied this principle at sentencing to

conclude that a defendant need not know the type of drug involved in a drug

offense in order to receive a statutory mandatory-minimum sentence based on that

type of drug. See United States v. Gomez, 905 F.2d 1513, 1514-15 (11th Cir.

1990) (stating that “those who, acting with a deliberate anti-social purpose in mind,

become involved in illegal drug transactions, assume the risk that their actions will

subject them to enhanced criminal liability”) (citation omitted).

Whether the presence of methamphetamine was reasonably foreseeable to

Alvarez-Coria is immaterial because Alvarez-Coria is being held accountable for

his own conduct, not the conduct of his co-conspirators. Alvarez-Coria knowingly

participated in a plan to transport three drug-filled containers to Atlanta. The fact

that Alvarez-Coria did not know the type or quantity of the drugs did not preclude

the district court from attributing the drugs to him for sentencing purposes. Under

U.S.S.G. § 3B1.3 and its commentary and the reasoning of Gomez, the district

court correctly attributed both the methamphetamine and the cocaine to AlvarezCoria.

Accordingly, we affirm Alvarez-Coria’s 86-month sentence.

AFFIRMED.