FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 25, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-12471

Non-Argument Calendar

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D. C. Docket No. 06-00465-CR-T-24-EAJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ALEJANDRINO LOZANO-RAMIREZ, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 25, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:
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Alejandrino Lozano-Ramirez appeals his 135-month sentence for

conspiracy to possess, and possession with intent to distribute 5 kilograms or more

of cocaine while aboard a vessel subject to United States jurisdiction, in violation

of 21 U.S.C. § 960(b)(1)(B)(ii), 46 U.S.C. §§ 70503(a)(1), 70506(a), (b). He

argues the district court erred in denying him a minor role reduction and that his

sentence was unreasonable.

Lozano first argues the district court erred in not granting him a mitigating

role adjustment. He argues other individuals in the conspiracy had far greater

roles than his role, and he did not plan the crime. He claims he was merely a

courier and the lowest ranking crew member on the boat. He further maintains

that he was not paid a commission for transporting the drugs, nor did he own the

drugs, and the district court did not consider his role compared to others on the

vessel. He argues other similarly situated defendants received mitigating role

reductions, and the district court did not consider this fact. He argues that in the

Middle District of Florida, the length of a defendant’s sentence is based more on

which judge imposes the sentence than an analysis of the defendant’s role and the

facts of the case, and the district court ignored the disparate sentencing of similar

defendants. He argues the district court improperly placed the burden on him to

prove he deserved a lesser role. He concludes that by starting the sentencing
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calculations at that of an “average” participant, the district court aggravated his

role without making the necessary aggravating role findings.

 “[We have] 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 bears the burden of proving the mitigating role in the offense

by a preponderance of the evidence. Id. at 939. “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. The district court does not need to make specific

subsidiary factual findings, and, as long as the record supports the decision and the

district court resolves any disputed factual issues, a final determination is

sufficient. Id. at 939-40. The burden is on the defendant to offer evidence at

sentencing on an issue that would reduce his offense level, and if he fails to do so,

and other evidence does not demonstrate entitlement, we will affirm the district

court finding. See United States v. Wilson, 884 F.2d 1355, 1356-57 (11th Cir.

1989) (holding defendant failed to meet burden for acceptance of responsibility

reduction where he objected in the PSI, but only made arguments at sentencing

without offering evidence). 

Under U.S.S.G. § 3B1.2, the district court may reduce the offense level by
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two points if a defendant is a minor participant in the offense. A minor participant

means 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, cmt. n.5. The

district court uses a two-part test to determine if a defendant is a minor participant. 

First, “the district court must measure the defendant’s role against the relevant

conduct for which [he] was held accountable at sentencing.” De Varon, 175 F.3d

at 945. Relevant conduct includes that “conduct attributed to the defendant in

calculating [his] base offense level.” Id. at 941. “[I]n many cases this method of

analysis will be dispositive.” Id. at 945. “In the drug courier context, . . . the

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

role. . . . [and] may be dispositive—in and of itself—in the extreme case.” Id. at

943. Second, “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. . . . [he must be] less culpable than most other

participants in [his] relevant conduct.” Id. at 944. A drug courier may or may not

qualify for a minor role reduction. Id. at 942.

The district court did not clearly err in denying Lozano a minor role
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reduction. In light of the substantial amount of drugs involved and Lozano’s role

as crew member who, among other things, tossed bales of cocaine overboard after

the Coast Guard ordered him to stop, we cannot conclude that Lozano’s

participation was minor. Lozano also failed to present evidence that he was less

culpable than most of the other crew members. Additionally, the sentences of

other defendants in other cases had no bearing on whether Lozano had a minor

role in the relevant conduct.

Lozano also argues the district court’s sentence was unreasonable. Lozano

claims he only joined the conspiracy to provide support for his family, who live in

poverty without government assistance. Lozano maintains that he will leave the

country after the end of his prison term. He argues that the district court did not

consider that Lozano was from Colombia where there are no government

assistance programs, nor did it give meaningful consideration to his argument that

he was unlikely to be a recidivist. He claims that the court should have considered

Lozano’s individual situation, and a lower sentence would have complied with the

purposes of § 3553. Additionally, he maintains that a lower sentence was needed

to avoid disparity with the sentences of similar defendants.

We review the final sentence imposed by the district court for

reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007) (per
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curiam). Recently, the Supreme Court clarified that the reasonableness standard

means review of sentences for abuse of discretion. Gall v. United States, 552 U.S. 

__, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). 

The district court must impose a sentence that is both procedurally and

substantively reasonable. Gall, 552 U.S. at __, 128 S. Ct. at 597. The Supreme

Court has explained that a sentence would be procedurally unreasonable if the

district court improperly calculated the guideline imprisonment range, treated the

Guidelines as mandatory, failed to consider the appropriate statutory factors, based

the sentence on clearly erroneous facts, or failed to adequately explain its

reasoning. Id. If the district court made no procedural errors, then we review the

substantive reasonableness of the sentence imposed to determine whether the

sentence is supported by the 18 U.S.C. § 3553(a) factors. Id. at __, 128 S.

Ct. at 600. The § 3553(a) factors include: 

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need to reflect the seriousness

of the offense, to promote respect for the law, and to provide just

punishment for the offense; (3) the need for deterrence; (4) the need

to protect the public; (5) the need to provide the defendant with

needed educational or vocational training or medical care; (6) the

kinds of sentences available; (7) the Sentencing Guidelines range; (8)

pertinent policy statements of the Sentencing Commission; (9) the

need to avoid unwanted sentencing disparities; and (10) the need to

provide restitution to victims.
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United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam). 

There is a “range of reasonable sentences from which the district court may

choose.” Id. at 788. “[T]he party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable in light of both [the] record and the

factors in section 3553(a).” Id. The weight given to particular sentencing factors

is committed to the sound discretion of the district court. United States v. Clay,

483 F.3d 739, 743 (11th Cir. 2007).

We have held that a district court is not required to state that it has explicitly

considered each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329

(11th Cir. 2005). In addition, “when the district court imposes a sentence within

the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” Talley, 431 F.3d at 788.

As indicated above, Lozano only argues that the district court committed

substantive error. Upon review of the record, we conclude that the district court

did not abuse its discretion when it sentenced Lozano to 135 months’

imprisonment. The court considered Lozano’s extreme poverty and his good

character. However, the sentence the district court imposed implicated a number

of other relevant factors, including the facts of the crime, the need for deterrence,

and the protection of the public. Lozano fails to show that his sentence was
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unreasonable, or that a significant disparity existed with similarly situated

defendants. The district court considered the § 3553 factors, and the final

sentence was the lowest recommended by the guidelines, well below the statutory

maximum of life imprisonment. 

Upon review of the record and upon consideration of the briefs of the

parties, we find no reversible error.

AFFIRMED.