FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 November 29, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-12057

Non-Argument Calendar

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D. C. Docket No. 03-00560-CR-2-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CARLOS VARGAS-GUTIERREZ, 

a.k.a. Carlos, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Georgia

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(November 29, 2005)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

Carlos Vargas-Gutierrez appeals his 108-month sentence, imposed after he

pled guilty to conspiracy to distribute at least 500 grams of methamphetamine, in
In its brief, the government argues that this Court lacks jurisdiction based on the appeal- 1

waiver provision in Vargas-Gutierrez’s plea agreement. We previously rejected this exact

argument twice, when we denied the government’s motion to dismiss and when we denied its

motion for reconsideration. 

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violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii). On appeal, Vargas-Gutierrez

challenges the district court’s denial of a minor-role reduction. After careful 1

review, we affirm.

“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. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005)

(internal quotation marks and citation omitted). “[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).

“[T]he ultimate determination of role in the offense is also a fundamentally factual

determination entitled to due deference and not a legal conclusion subject to de

novo review.” Id. at 938. The defendant has the burden of establishing his minor

role in the offense by a preponderance of the evidence. Id. at 939.

The Sentencing Guidelines permit a two-point decrease of a defendant’s

offense level if the court finds the defendant was a “minor participant” in the

crime. U.S.S.G § 3B1.2(b). To determine whether a mitigating-role reduction is

warranted, a district court “should be informed by two principles discerned from
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the Guidelines: [1], the defendant’s role in the relevant conduct for which [he] has

been held accountable at sentencing, and, [2], [his] role as compared to that of

other participants in [his] relevant conduct.” De Varon, 175 F.3d at 940. In

looking to relevant conduct, “the district court must assess whether the defendant is

a minor or minimal participant in relation to the relevant conduct attributed to the

defendant in calculating [his] base offense level.” Id. at 941. “In making the

ultimate determination of the defendant’s role in the offense, the sentencing judge

has no duty to make any specific subsidiary factual findings.” Id. at 939. “So long

as the basis of the trial court’s decision is supported by the record and does not

involve a misapplication of a rule of law, we believe that it will be rare for an

appellate court to conclude that the sentencing court’s determination is clearly

erroneous.” Id. at 945 (emphasis in original).

Vargas-Gutierrez argues that he is entitled to a minor-role reduction because

his only role in the conspiracy consisted of introducing one of his co-defendants to

a drug supplier. As the district court acknowledged, however, Vargas-Gutierrez

and one of his co-defendants who cooperated prior to Vargas-Gutierrez’s

cooperation provided conflicting stories concerning co-defendant Gerardo TorresLugo’s participation in the conspiracy. The earlier cooperating co-defendant
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immediately upon arrest identified Torres-Lugo as the supplier, while VargasGutierrez waited over four months to reveal the existence of a different person. 

Vargas-Gutierrez argues the district court accorded too much weight to the

timing of his cooperation with the government’s investigation. We disagree. From

our review of the sentencing transcript, it is clear that Vargas-Gutierrez simply did

not meet his burden to establish by a preponderance of the evidence his minor role

in the offense. The district court highlighted the conflicting versions of events and

concluded that “something doesn’t fit well” with Vargas-Gutierrez’s version. On

this record, we cannot say the district court clearly erred by denying a minor-role

reduction. 

AFFIRMED.