FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 19, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-11785

Non-Argument Calendar

________________________

D. C. Docket No. 06-00279-CR-T-17TBM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

HENRY LERMA, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (November 19, 2007)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Henry Lerma appeals his 168-month sentence for conspiracy to possess with
On October 6, 2006, the appendix to Title 46 was repealed and recodified as 46 U.S.C. 1

§§ 70503 and 70506 with no relevant changes. See Pub. L. No. 109-304, 120 Stat. 1485 (2006).

2

intent to 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. App. § 1903(a), (g),

(j) and 21 U.S.C. § 960(b)(1)(B)(ii), and possession with intent to 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. App. § 1903(a), (g), 21 U.S.C.

§ 960(b)(1)(B)(ii) and 18 U.S.C. § 2. 

1

Lerma was one of nine crew members on a small vessel transporting

approximately 5,000 kilograms of cocaine. Lerma was one of four deck hands and

took turns with the other deck hands driving the vessel in three-hour shifts.

When the United States Coast Guard (“USCG”) came upon the vessel, one

of the crew members instructed the others to pour gasoline on the vessel and set it

on fire in an attempt to destroy the cocaine. The USCG boarded the vessel and

extinguished the fire, but not before Lerma and another crew member sustained

second and third degree burns that required medical attention at a hospital.

Lerma was indicted and pled guilty to both counts. The presentence

investigation report (“PSI”) set Lerma’s base offense level at 38, pursuant to

U.S.S.G. § 2D1.1(a)(3), based on the 5,000 kilograms of cocaine found on the

vessel. The PSI recommended a three-level reduction for acceptance of
We review a district court’s safety-valve fact-finding for clear error. United States v. 2

Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). 

3

responsibility, pursuant to U.S.S.G. § 3E1.1. With a criminal history category of I,

the resulting guideline range was 168 to 210 months’ imprisonment.

Lerma objected to the PSI’s failure to include a two-level safety-valve

reduction and a two-level mitigating-role reduction. At sentencing, the district

court overruled Lerma’s objections and imposed a 168-month sentence on both

counts, to be served concurrently.

Lerma filed this appeal.

I. DISCUSSION

A. Safety-Valve Relief

On appeal, Lerma argues that the district court erred when it denied him a

two-level reduction under the safety-valve provision of the Sentencing Guidelines.2

Under the safety-valve provision, if a defendant convicted of certain drug

crimes satisfies certain criteria, a district court shall impose a sentence without

regard to any statutory mandatory minimum, 18 U.S.C. § 3553(f), U.S.S.G.

§ 5C1.2, and also give a two-level reduction in the defendant’s offense level,

U.S.S.G. § 2D1.1(b)(9). A defendant has the burden of proving his eligibility for

safety-valve relief. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). 

Among the criteria that must be met, the defendant must prove that “the offense
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did not result in death or serious bodily injury to any person.”

U.S.S.G. § 5C1.2(a)(3) (emphasis added).

Here, it is undisputed that two people sustained serious bodily injury during

the offense. Lerma and one of his co-defendants were seriously burned and

required hospitalization. Lerma admits these burns constituted serious bodily

injury.

Lerma points out that he sustained injuries and that he has already endured

pain and suffering as a result of his injuries. He also argues that he saved another

co-defendant’s life by helping him put on a life jacket and pushing him overboard. 

The plain language of § 5C1.2(a)(3) states that a defendant is precluded from

safety-valve relief if the offense resulted in serious bodily injury to any person. 

Thus, the injuries to Lerma’s co-defendant alone preclude the relief. Furthermore,

nothing in § 5C1.2 or 18 U.S.C. § 3553(f) provides for safety-valve relief where a

co-defendant sustains serious injury, but the defendant also saved a co-defendant’s

life.

Because Lerma did not meet the requirements of § 5C1.2(a)(3), the district

court correctly denied Lerma a two-level safety-valve reduction.

B. Mitigating-Role Reduction

Lerma contends that the district court should have awarded him a two-level
A district court’s determination of a defendant’s role in an offense constitutes a factual 3

finding to be reviewed only for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th

Cir. 1999) (en banc). 

5

mitigating-role reduction because he was merely a crew member aboard the

vessel.3

If the defendant was a minor participant in the criminal activity, the district

court decreases the offense level by two levels. U.S.S.G. § 3B1.2(b). A minor

participant is one “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. If the defendant

was a minimal participant in the criminal activity, the district court decreases the

offense level by four levels. U.S.S.G. § 3B1.2(a). A minimal participant is one

who “plays a minimal role in concerted activity” and the phrase “is intended to

cover defendants who are plainly among the least culpable of those involved in the

conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. The defendant has the burden to

establish his role in the offense by a preponderance of the evidence. United States

v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc). 

In determining whether a mitigating-role reduction applies, the district court

considers two principles: (1) the defendant’s role in the offense compared to the

relevant conduct attributed to him in calculating his base offense level; and (2) the

defendant’s role compared to that of other participants in the offense. Id. at 940-
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45. “[I]n the drug courier context . . . 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.” Id. at 943. 

Additionally, “when a drug courier’s relevant conduct is limited to [his] own act of

importation, a district court may legitimately conclude that the courier played an

important or essential role in the importation of those drugs.” Id. at 942-43.

Here, Lerma was held accountable for only the amount of cocaine found on

board the vessel. Thus, Lerma’s relevant conduct was identical to his actual

conduct in the importation scheme. Furthermore, the amount of drugs Lerma and

his co-defendants were transporting – 5,000 kilograms – was substantial.

In addition, Lerma did not show that he was less culpable than most of the

other identifiable participants in the offense. Lerma was one of four deck hands on

the vessel. As part of his job, Lerma took shifts driving the vessel. While Lerma

and the other deck hands may have been less culpable than the captain of the vessel

or the “load guard,” we cannot say Lerma was a minor participant. See id. at 944

(explaining that it is possible for there to be no minor participants in a conspiracy).

Lerma’s contention that the district court failed to “make a specific

comparison” to Lerma’s co-defendants is without merit. The district court stated

on the record that Lerma was “similarly situated with the other defendants . . . .” In
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any event, the district court is not required to compare each identifiable participant

to the defendant on the record. See De Varon, 175 F.3d at 940 (“[A] district court

is not required to make any specific findings other than the ultimate determination

of the defendant’s role in the offense.”).

Thus, the district court did not clearly err in denying Lerma a mitigating-role

adjustment.

AFFIRMED.