Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit

No. 05-2588

UNITED STATES OF AMERICA,

Appellee,

v.

MARINO PÉREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, Senior U.S. District Judge]

Before

Boudin, Chief Judge, Selya, Circuit Judge, and Stahl, Senior Circuit Judge.

Ramón M. González Santiago on brief for appellant. Nelson Pérez-Sosa, Assistant U.S. Attorney, Germán A. Rieckehoff, Assistant U.S. Attorney, and Rosa Emilia Rodríguez- Vélez, United States Attorney, on brief for appellee.

December 15, 2006 Per Curiam. Marino Pérez challenges his 110-month,

below-guidelines sentence primarily on the ground that the district

court erred in rejecting his request for a minor-role adjustment

under U.S.S.G. § 3B1.2.1 He also argues that the district court

departed from the sentencing protocol that we subsequently endorsed

in United States v. Jiménez-Beltre,

, 518-19 (1st Cir.

2006) (en banc), and its progeny, by inadequately explaining the

reasons for its chosen sentence. After carefully considering the

parties' briefs and the underlying record, we reject those

arguments and affirm the sentence for the reasons discussed below.

"Role-in-the offense determinations are notoriously fact-

sensitive . . . ." United States v. Ortiz-Santiago,

(1st Cir. 2000). Accordingly, "appellate review is

deferential: the district court's resolution of a dispute over a

defendant's role is reviewed only for clear error."

.

That standard of review of factual determinations in the sentencing

context remains unchanged after United States v. Booker,

(2005). United States v. Robinson,

(1st Cir.

2005). "'Thus, absent a mistake of law, battles over a defendant's

1 If the court had found Pérez to be a "minor participant" within the meaning of U.S.S.G. § 3B1.2, he would have been entitled to a two-level reduction in his base offense level under U.S.S.G. § 3B1.2(b) and an additional four-level reduction under § 2D1.1(b)(3)(B)(iii) (Nov. 1, 2004 ed.). See also U.S.S.G. § 3B1.2 comment. (n.6). Those reductions--combined with other reductions granted by the court and his Criminal History Category of I--would have resulted in a guidelines range of 70 to 87 months. Pérez asked to be sentenced at the bottom of that range.

-2- status . . . will almost always be won or lost in the district

court.'" Ortiz-Santiago,

(quoting United States v.

Graciani,

(1st Cir. 1995)). This case is no

exception.

"A defendant who seeks a downward adjustment stemming

from his supposedly peripheral role in the offense bears the burden

of proof on that issue. To qualify for a minor role reduction

. . . , the defendant must satisfy a two-pronged test. First, he

must demonstrate that he is less culpable than most of those

involved in the offenses of conviction. Second, he must establish

that he is less culpable than most of those who have perpetrated

similar crimes." United States v. Mateo-Espejo,

(1st Cir. 2005) (citations omitted), cert. denied,

(2006). Here, the district court did not clearly err in concluding

that Pérez had failed to satisfy that two-pronged burden.

In declining to apply a minor-role adjustment, the

district court relied on undisputed evidence that, rather than

simply serve as a deckhand and intended offloader of the drugs once

they were onboard, Pérez had traveled 12 miles to get the drugs,

had loaded them onto a speedboat headed for a known drug-

trafficking location, was one of only two people onboard the

speedboat, and participated in throwing some of the drugs overboard

once the vessel was approached by law enforcement authorities. The

court further noted that the amount of drugs--over 1,000 kilograms

-3- of cocaine and over 6 kilograms of heroine--was "huge" as was the

amount of money ($80,000) that Pérez was promised for his

participation. In reaching the conclusion that these circumstances

made him more than a minor participant, the court properly rejected

Pérez's speculative argument that the other person onboard was more

culpable simply because he was the captain of the ship. In the

absence of any evidence of their respective roles, the fact that

one of the two individuals served as a captain "does not indicate

that [the] other[] on board had a less significant function

relative to the criminal activities." United States, v. Coneo-

Guerrero,

(1st Cir. 1998).

Moreover, even if Pérez were the less culpable of the

two, that would not automatically entitle him to a minor-role

adjustment. United States v. Murphy,

(1st Cir.

1999). To satisfy the second prong of the minor-role standard, a

defendant must be less culpable, not only than his co-participants,

but also than the ordinary average participant in the offense of

conviction. United States v. Sanchez,

(1st Cir.

2004). Where, as here, the offense of conviction is simply

possession with intent to distribute drugs, not a broad-ranging

drug-trafficking conspiracy, "it matters little . . . whether

defendant[] substantially participated in an alleged overall drug

conspiracy. The fact that [he] may or may not have been a smaller

part of a larger conspiracy does not diminish [his] role in the

-4- cocaine possession offense charged here." United States v.

Rosario-Peralta,

(1st Cir. 1999); see also

United States v. Wright,

(1st Cir. 1989).

Thus, based on the totality of circumstances evidenced in

the record, we cannot say that the district court clearly erred in

rejecting Pérez's bid for a minor-role reduction in his offense

level. Absent such an adjustment, the district court correctly

calculated Pérez's advisory guidelines sentencing range as 135 to

168 months. Nevertheless, applying the "rule of leniency," the

court sentenced him to only 110 months' imprisonment.2

Despite receiving a below-guidelines sentence, Pérez

faults the court for failing to explain the reasons for the

sentence in terms of the statutory factors. From the sentencing

transcript, it is obvious that the sentence was based primarily on

the guidelines calculations, which is not impermissible, since the

guidelines "continue . . . to be an important consideration in

sentencing." Jiménez-Beltre, 440 F.3d at 518. Both at the change

of plea hearing and at sentencing, the court expressly recognized

that the guidelines are now advisory rather than mandatory, and,

before imposing sentence, the court expressly stated that it had

2 That exercise of leniency was based on the court's (questionable) belief that because Pérez satisfied the requirements for the "safety valve," the applicable statute,

(f), required that he be sentenced below the applicable statutory minimum of 120-months. Understandably, Pérez does not complain about that exercise of leniency, and neither does the government. Hence, we do not address it.

-5- considered not only the guidelines but also the sentencing factors

set forth in

. Although the court did not discuss

those factors individually, such discussion is required only as to

those factors raised for the court's consideration at sentencing.

United States v. Alli,

(1st Cir. 2006). At

sentencing, defense counsel alluded briefly to some of Pérez's

personal circumstances, including his lack of a criminal record,

his status as an illegal alien, his parents' poverty, and his

resulting need to work rather than complete his schooling, but he

made no arguments as to why those circumstances warranted a lighter

sentence in light of any of the statutory factors.3

Moreover, to the extent that the district court

implicitly rejected such relatively ordinary circumstances as

warranting a sentence even lower than the sentence imposed-- which

was already 15 months below the bottom of the guidelines range and

10 months below the statutory minimum--we see nothing unreasonable

about that implicit rationale or the resulting sentence.

Accordingly, the judgment is affirmed. See Loc. R. 27.0(c).

3 On appeal, Pérez argues, for the first time, that his status as a deportable alien warranted a lighter sentence because, as such, he is ineligible for any time-reduction programs while incarcerated. This unpreserved claim falls far short of plain error. See United States v. Beriguete Meran,

(1st Cir. 2006) (per curiam) (finding rejection of similar argument to be not unreasonable).

-6-