[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 15, 2006

N o . 05-12577

THOMAS K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 03-00398-CR-T-17TBM

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

FLORENTINO SOTO,

a.k.a. Florentino Junior Soto,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Middle District of Florida

(F eb ru a ry 15, 2006)

B efo re CARNES, MARCUS and PRYOR, Circuit Judges.

P E R CURIAM:

F lo ren tin o Soto appeals the 110-month sentence imposed after he pled guilty to conspiring to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A). On appeal, Soto argues the district co u rt erred at sentencing by failing to award (1) a minor-role adjustment, pursuant to U.S.S.G. § 3B1.2, based on his status as a courier, and (2) a safety-valve r ed u c tio n , pursuant to U.S.S.G. § 5C1.2, because his criminal history was overrep resen ted under the Guidelines calculus. After careful review, we affirm.

W e review de novo questions of law regarding the district court's ap p licatio n of the Guidelines. See United States v. Crawford, 407 F.3d 1174, 1 1 7 8 -7 9 (11th Cir. 2005) ("as was the case before [United States v. Booker, 543 U .S . 220 (2005)], the district court must calculate the Guidelines range a c c u r a te ly " ) . A defendant seeking a minor-role reduction bears the burden of p r o v in g that he is entitled to the reduction by a preponderance of the evidence.

U n ited States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc). The d istrict court's determination of a defendant's role in a criminal offense "is heavily d e p e n d e n t upon the facts of the particular case." U.S.S.G. § 3B1.2 cmt. n.3(C).

A cco rd in g ly, we review that determination for only clear error. De Varon, 175 F .3 d at 937. "So long as the basis of the trial court's decision is supported by the reco rd and does not involve a misapplication of a rule of law, . . . it will be rare for an appellate court to conclude that the sentencing court's determination is clearly erro n eo u s." Id. at 945. We review factual determinations under the safety-valve p ro v is io n for clear error. See United States v. Cruz, 106 F.3d 1553, 1557 (11th C ir. 1997).

The parties are familiar with the relevant facts and we only summarize the facts necessary to our analysis here. During a traffic stop in Kansas, Soto c o n s e n te d to a search of his vehicle. Inside of a hidden compartment in Soto's car, law enforcement recovered 11 "bricks" of cocaine wrapped in plastic wrap and w e ig h in g 8.993 kilograms. An ongoing investigation showed that Soto was o p eratin g as part of a larger conspiracy distributing cocaine from California to F lo rid a. Soto pled guilty and proceeded to sentencing.

T h e statutory mandatory-minimum penalty for Soto's offense of conviction w a s 120 months' imprisonment. See 21 U.S.C. § 841(b)(1)(A). The presentence in v estig atio n report ("PSI") assigned a base offense level of 32 and recommended a 2-point downward adjustment for acceptance of responsibility, U.S.S.G.

§ 3E1.1(a), and a 1-point downward adjustment for Soto's timely notice of his in te n t to plead guilty, U.S.S.G. § 3E1.1(a) and (b). Thus, the probation officer a s s ig n e d Soto a total offense level of 29. As for criminal history, the PSI assessed o n e point for Soto's 2001 conviction for possession of alcohol by a minor, for w h ich adjudication had been withheld and Soto received a sentence of 36 months' p ro b atio n . See U.S.S.G. § 4A1.1(c). Soto was still on probation at the time he c o m m itte d the instant offense, thus warranting the assessment of two more crim in al history points. See U.S.S.G. § 4A1.1(d). With a total offense level of 29 an d a criminal history category II (based on three criminal history points), the r ec o m m e n d e d Guidelines range was 97 to 121 months' imprisonment. After ta k in g into consideration the 120-month mandatory-minimum for Soto's offense, th e effective Guidelines range was 120 to 121 months' imprisonment. The PSI also stated that Soto was then serving in Kansas a term of imprisonment resulting fro m an offense that was relevant conduct to the instant offense. Thus, the PSI n o ted the applicability of U.S.S.G. § 5G1.3(b), which governs imposition of s en te n c e on a defendant who was convicted of a crime while serving an u n d isch arg ed term of imprisonment for a prior conviction constituting relevant co n d u ct to the instant offense.

Over Soto's objections, the district court adopted the recommendations of th e PSI, credited Soto for ten months of time he had already served in Kansas for a co n v ictio n constituting "relevant conduct," and accordingly imposed a 110-month term of imprisonment. The court recognized the post-Booker advisory nature of th e Guidelines and stated that, "[a]fter considering the advisory sentencing g u id elin es and all the factors identified in [18U.S.C. § 3553(a)(1) through (7),] the s e n te n ce imposed [was] sufficient but not greater than necessary to comply with th e statutory purposes of sentencing." This appeal followed.

F irst, Soto argues that he should have been given a two-level minor-role red u ctio n pursuant to U.S.S.G. § 3B1.2 because, as a courier, he played a minor r o le relative to other participants in the conspiracy. The Guidelines provide for a tw o - le v e l decrease where the defendant was a minor participant in any criminal a c tiv ity . See U.S.S.G. § 3B1.2(b). A minor participant is defined as "any p articip an t who is less culpable than most other participants, but whose role could n o t be described as minimal." U.S.S.G. § 3B1.2, comment. (n.3). To determine w h eth er the adjustment applies, a district court first should measure the defendant's ro le against the conduct for which he has been held accountable. See De Varon, 1 7 5 F.3d at 934. With regard to drug couriers, we have indicated that our holding in De Varon "[did] not create a presumption that drug couriers are never minor or m in im a l participants, any more than that they are always minor or minimal," but "[r]ath er . . . [established] only that the district court must assess all of the facts p ro b ativ e of the defendant's role in [his] relevant conduct in evaluating the d efen d an t's role in the offense." United States v. Boyd, 291 F.3d 1274, 1277 (11th C ir. 2002). W h ere there is sufficient evidence, after measuring the defendant's role ag ain st the conduct for which he is being held accountable, a district court also m a y measure the defendant's conduct against that of other participants in the c rim in a l scheme attributed to the defendant. See De Varon, 175 F.3d at 943. In m ak in g this inquiry, a district court should look to other participants only to the e x te n t that they (1) are identifiable or discernable from the evidence, and (2) were in v o lv ed in the relevant conduct attributed to the defendant. See id. at 944 (stating th a t "[t]he conduct of participants in any larger criminal conspiracy is irrelevant").

H ere, the relevant conduct attributed to Soto was the possession of 8.993 k ilo g ra m s of cocaine, which represented the amount of cocaine found in Soto's v eh icle . At the plea colloquy, Soto admitted to the amount of cocaine found in his v eh icle during the traffic stop and, at sentencing, he did not object to the PSI's calcu latio n of the amount of cocaine found in his car. The possession of 8.993 k ilo g ram s of cocaine was sufficient to show that Soto's role was not minor in the relev a n t conduct of possession with intent to distribute over five kilograms of co ca in e. Cf. De Varon, 175 F.3d at 942-43 (observing "when a drug courier's r ele v a n t conduct is limited to her own act of importation, a district court may leg itim ately conclude that the courier played an important or essential role in the im p o r ta tio n of those drugs."; observing that amount of drugs is "a material co n sid eratio n " in assessing the defendant's role in offense and that amount of d ru g s may be "the dispositive factor"). Therefore, the first principle of De Varon p re clu d es a minor role reduction and we discern no clear error in the district court's refu sal to award the adjustment.1 N ex t, Soto argues he was entitled to a safety-valve reduction. Pursuant to 21 U .S .C . § 841(b)(1)(A), Soto faced "a term of imprisonment which may not be less th an 10 years[.]" Although U.S.S.G. § 5C1.2 provides that the district court "shall im p o se a sentence in accordance with the applicable guidelines without regard to an y statutory minimum sentence," to do so it first must find "that the defendant m eets the [safety-valve] criteria in 18 U.S.C. § 3553(f)(1)-(5)." U.S.S.G. § 5 C 1 .2 (a) (emphasis added).2 At Soto's sentencing hearing, he challenged only the 1 Given Soto's failure to carry his burden on the first De Varon prong, we need not reach the second prong, but we nevertheless observe that this second principle would also defeat the award of a minor-role reduction here. The PSI outlined that the conspiracy in which Soto was involved included both "leaders" and "transporters," and that the transporters may have taken possession of the drugs on a consignment basis. Based on the amounts confiscated at other points in the investigation, as outlined in the PSI, the 8.9 kilograms Soto possessed was a substantial amount.

Therefore, information before the district court suggested that Soto was an average member of the conspiracy, something more than minimal or minor. In any event, the conduct of others who were involved in the overall scheme is irrelevant to the assessment of Soto's role, as he was not charged with a larger drug trafficking conspiracy and the other conspirators were not identifiable from the evidence. See De Varon, 175 F.3d at 944 (observing that, on second prong, "the district court may consider only those participants who were involved in the relevant conduct attributed to the defendant" and "[t]he conduct of participants in any larger criminal conspiracy is irrelevant").

2 The safety-valve requirements are: (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; f irst safety-valve criterion of § 3553(f)(1). Guideline 5C1.2(a)(1), implementing § 3553(f)(1), provides for the safety-valve reduction if "the defendant does not h av e more than 1 criminal history point, as determined under the Sentencing G u id elin es before application of [U.S.S.G. § 4A1.3(b)]." U.S.S.G. § 5C1.2(a)(1) ( em p h a sis added). Guideline 4A1.3(b), in turn, provides for situations where a d efen d an t's criminal history category "substantially over-represents the seriousness o f [his] criminal history" or the likelihood of recidivism, by allowing for a d o w n w ard departure.

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

18 U.S.C. § 3553(f).

H o w e v e r, a "defendant whose criminal history category is Category I after receip t of a downward departure under this subsection does not meet the [first criterio n for the safety-valve] if, before receipt of the downward departure, the d efen d an t had more than one criminal history point under § 4A1.1[.]" U.S.S.G.

§ 4A1.3(b)(3)(B). Under U.S.S.G. § 4A1.1(d), the Guidelines instruct the court to ad d 2 points to a defendant's criminal history "if [he] committed the instant offense w h ile under any criminal justice sentence, including probation[.]" Simply put, the assessm en t of two criminal history points for Soto's commission of the instant o ffen se while serving a term of probation made Soto ineligible for safety-valve r elie f. Accordingly, a correct application of the Guidelines prevented the court fro m giving Soto the benefit of a safety-valve reduction.

F in a lly , to the extent Soto challenges the reasonableness of his sentence u n d e r Booker, we can find no error. The district court expressly stated, after co n sid eratio n of the § 3553(a) factors, that the sentence was reasonable. The o ffen se committed involved a substantial amount of cocaine, and Soto was already o n probation. Moreover, Soto presented no history or characteristics so compelling a s to undermine the reasonableness of a standard sentence. The court sentenced h im within the Guidelines range, including specific directives as to Soto's ed u catio n while incarcerated, pursuant to Soto's request. As such, we can find n o th in g to suggest that Soto's sentence was unreasonable. We recently rejected the g o v ern m en t's argument that we do not have jurisdiction to review sentences for reaso n ab len ess. See United States v. Martinez, --- F.3d ---, 2006 WL 39541 *3 (1 1 th Cir. Jan. 9, 2006) (rejecting government's argument that this Court lacks ju r is d ic tio n to review sentences for reasonableness under 18 U.S.C. § 3742); see also United States v. Mickelson, --- F.3d ---, 2006 WL 27687 *2 (8th Cir. Jan. 6, 2 0 0 6 ) (same).

We can find no legal error in the district court's application of the G u id elin es , nor can we discern clear error in its factual findings. Accordingly, we a ff ir m Soto's sentence.3 A F F IR M E D .

3 In his initial brief, Soto also "moves to adopt co-appellants' briefs as they may apply." According to our rules, parties wishing to adopt other parties' briefs "shall include a statement describing in detail which briefs and which portions of those briefs are adopted." 11th Cir. R. 28-1(f); see also Fed. R. App. P. 28(i). We retain discretion to consider arguments as adequately adopted despite an appellant's failure to comply with the adoption requirements in instances such as when not doing so would result in the anomaly of "revers[ing] some convictions and not others when all defendants suffer from the same error." See United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980); Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (noting that decisions by the former Fifth Circuit issued before October 1, 1981, are binding as precedent in this Circuit). Not only does Soto not identify which co-appellant's briefs he means, but he is the only appellant in this action. Accordingly, Soto's statement of adoption was inadequate to assert any arguments other than the ones we have addressed here.