FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 1, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-10882

Non-Argument Calendar

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D. C. Docket No. 04-00437-CR-T-26TBM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MIGUEL VIVAS-RENGEFO, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(February 1, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Miguel Vivas-Rengefo appeals his 135-month sentence, imposed after he

pled guilty to possession of cocaine with intent to distribute, and conspiracy to
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distribute 5 kilograms or more of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a), (g), and (j),

and 21 U.S.C. § 960(b)(1)(B)(ii). On appeal, Vivas-Rengefo, who was charged

with three codefendants, Paulino Jiminez-Biojo, Christian Balereso, and Alexandre

Anchico, argues the district court erred by refusing to grant him a two-level,

minor-role reduction, pursuant to U.S.S.G. § 3B1.2. He asserts his participation in

the offense was minor when compared to the owners of the cocaine because he

only transported it and did not have an equity interest. He also urges that because

he was less culpable than the scheme’s organizers and recruiters, he was entitled to

the reduction and the district court erroneously based his sentence on how the court

previously had handled similar cases. 

We review a district court’s factual findings regarding a defendant’s role in

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

1999) (en banc). “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.” De Varon, 175 F.3d at 945. 

The Guidelines provide for a two-level decrease where the defendant was a

minor participant in any criminal activity. See U.S.S.G. § 3B1.2(b). A minor
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participant is defined as “any participant who is less culpable than most other

participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2,

comment. (n.3). To determine whether the adjustment applies, a district court first

should measure the defendant’s role against the conduct for which he has been held

accountable. See De Varon, 175 F.3d at 934. With regard to drug couriers, this

Court has indicated that its holding in De Varon “[did] not create a presumption

that drug couriers are never minor or minimal participants, any more than that they

are always minor or minimal,” but “[r]ather . . . [established] only that the district

court must assess all of the facts probative of the defendant’s role in [his] relevant

conduct in evaluating the defendant’s role in the offense.” United States v. Boyd,

291 F.3d 1274, 1277 (11th Cir. 2002). In drug courier cases, “the amount of drugs

imported is a material consideration in assessing a defendant’s role in [his] relevant

conduct” and “may be dispositive -- in and of itself -- in the extreme case.” De

Varon, 175 F.3d at 943. 

Second, where there is sufficient evidence, a court also may measure the

defendant’s conduct against that of other participants in the criminal scheme

attributed to the defendant. See id. In making this inquiry, a district court should

look to other participants only to the extent that they (1) are identifiable or

discernable from the evidence, and (2) were involved in the relevant conduct
 Given Vivas-Renfego’s failure to carry his burden on the first prong, we need not reach 1

the second De Varon prong, but we nevertheless observe that this second principle would also defeat

the award of a minor-role reduction here. With the possible exception of co-conspirator JiminezBiojo, who claimed that he was the boat’s captain, Vivas- Vivas-Rengefo’s conduct was identical

to that of his codefendants. The conduct of others who were involved in the overall scheme of

transporting and selling cocaine -- the organizers or recruiters or those with an equity interest in the

cocaine -- is irrelevant to the assessment of Vivas-Rengefo’s role, as he is not charged with a larger

conspiracy to import or distribute drugs, and, in any event, these individuals are not identifiable

from the evidence. See DeVaron, 175 F.3d at 944.

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attributed to the defendant. See id. at 944 (stating that “[t]he conduct of

participants in any larger criminal conspiracy is irrelevant”). Moreover, “the

amount of drugs imported is a material consideration in assessing a defendant’s

role in [his] relevant conduct.” Id. at 943. 

Here, the relevant conduct attributed to Vivas-Rengefo at sentencing was the

importation and possession of approximately 3,588 pounds of cocaine, which

represented the amount of cocaine found on the vessel when it was intercepted

with Vivas-Rengefo onboard. Indeed, Vivas-Rengefo admitted at his plea colloquy

that he was found on a vessel with 3,588 pounds of cocaine, and that he knowingly

and intentionally possessed the cocaine and intended to distribute it. These

activities demonstrate that he participated in transporting the drugs, and that his

role was not minor in the relevant conduct of possession and conspiracy to possess

with intent to distribute over five kilograms of cocaine. See De Varon, 175 F.3d at

944. Therefore, the first principle of De Varon precludes a minor role reduction.1
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“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). Here, we cannot find clear

error in the district court’s conclusion that Vivas-Rengefo played an integral role in

the charged offenses and, accordingly, was not entitled to a minor-role reduction,

pursuant to our decision in De Varon.

AFFIRMED.