FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 12, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-14135

Non-Argument Calendar

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D. C. Docket No. 06-20038-CR-SH

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JESUS RODRIGO RINCON, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 12, 2007)

Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:
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Jesus Rodrigo Rincon appeals his sentence imposed after he pled guilty to

conspiring to import five kilograms or more of cocaine, in violation of 21 U.S.C.

§ 963. We affirm Rincon’s sentence.

Rincon asserts the district court erred in denying him a minor-role reduction

pursuant to U.S.S.G. § 3B1.2(b). Rincon contends the court failed to compare his

conduct to the conduct of his co-conspirators. Rincon asserts he was clearly less

culpable than the other participants because he had no independent knowledge of

the conspiracy details and his only function was to introduce the confidential

source (CS) to a co-conspirator, Pompilio Gutierrez, for a small fee. 

"This Court has 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). 

The defendant, as the proponent of the downward adjustment, bears the burden of

proving the mitigating role in the offense by a preponderance of the evidence. Id.

at 939. 

The Sentencing Guidelines permit a court to decrease a defendant's offense

level by two points if it finds the defendant was a "minor participant" in the

criminal activity. U.S.S.G § 3B1.2(b). A minor participant is a defendant “who is

less culpable than most other participants, but whose role could not be described as
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minimal." U.S.S.G. § 3B1.2, comment. (n.5). In determining whether a minor-role

reduction is warranted, a district court "should be informed by two principles

discerned from the Guidelines.” De Varon, 175 F.3d at 940. Under the first prong,

which may be dispositive in many cases, “the district court must measure the

defendant's role against the relevant conduct for which [he] was held accountable

at sentencing.” Id. at 945. Relevant conduct is the “conduct attributed to the

defendant in calculating [his] base offense level." Id. at 941. Under the second

prong, “the district court may also measure the defendant's role against the other

participants, to the extent that they are discernable, in that relevant conduct.” Id. at

945. A defendant, however, “is not automatically entitled to a minor role

adjustment merely because [he] was somewhat less culpable than the other

discernable participants. Rather, the district court must determine that the

defendant was less culpable than most other participants in [the] relevant conduct." 

Id. at 944.

Rincon did not satisfy the first prong because his actual conduct, a

substantial role in a conspiracy to import ten kilograms of cocaine into the United

States, was identical to the relevant conduct for which he was sentenced. Because

Rincon was only held accountable for the drugs that were imported due to his

personal conduct, “[the] district court [could] legitimately conclude that [Rincon]
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played an important or essential role in the importation of those drugs.” Id. at 942-

43.

As to the second prong, Rincon’s argument the district court erred by failing

to compare his conduct to the other participants’ conduct is not supported by the

record. Although at the sentencing hearing the district court did not make specific

findings comparing Rincon’s conduct to that of Gutierrez, the court did state it had

“discussed the matter with the probation officer, and [agreed] with the probation

officer’s conclusion.” In his conclusion, the probation officer included both an

assessment of Rincon’s conduct and a comparison between Rincon’s and

Gutierrez’s roles. The probation officer determined that Rincon and Gutierrez had

similar roles because they “were both contacts the CS spoke with on a regular basis

regarding the cocaine shipment [and t]hey both had knowledge of details regarding

the manner in which the cocaine would be smuggled, as well as when and where.”

In contrast to Rincon’s argument, he had a larger role in the conspiracy than

just recruiting the CS. He also remained in contact with both the CS and Gutierrez

regarding the cocaine shipment, participated in conversations planning the

smuggling of the drugs, relayed information to the CS to further the smuggling

operation, and arranged to receive $2,500 in exchange for introducing the CS to

Gutierrez. Although each participant had different roles in the conspiracy, these
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differences do not indicate that either co-conspirator was more culpable than

Rincon. We have recognized that it is entirely possible for conspiracies to exist

where no co-conspirator’s conduct warrants an adjustment for role in the offense. 

De Varon, 175 F.3d at 944.

We conclude the district court did not clearly err in denying Rincon a minorrole reduction. 

AFFIRMED.