United States v. Andrade-Guerrero

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 11, 2002
• Docket: 01-20639
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20639 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS GUSTAVO ANDRADE-GUERRERO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-146-1 -------------------- January 9, 2002 Before KING, Chief Judge, and JOLLY and DEMOSS, Circuit Judges.

PER CURIAM:*

Luis Gustavo Andrade-Guerrero (“Andrade”) appeals his

sentence following his conviction for possession with intent to

distribute heroin. Andrade argues that the district court erred

in denying him an offense level reduction for his role in the

offense pursuant to U.S.S.G. § 3B1.2.

We review for clear error the sentencing court’s

determination that a defendant did not play a minor role in an

offense. United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir.

1994). The Sentencing Guidelines allow a minor participant in

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-20639 -2-

any criminal activity a two-level reduction in his base offense

level. U.S.S.G. § 3B1.2(b). A “minor participant” is defined as

one 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). The defendant bears the burden of proving that

he was a minor participant in the offense. United States v.

Marmolejo, 106 F.3d 1213, 1217 (5th Cir. 1997).

Andrade was not charged with conspiracy; he was charged with

possession with intent to distribute heroin. His sentence was

calculated based on the quantity of heroin he personally

transported. The district court’s finding that Andrade was not a

minor participant is not clearly erroneous. Marmolejo, 106 F.3d

at 1217; see United States v. Flucas, 99 F.3d 177, 180-81 (5th

Cir. 1996).

Based on the foregoing, the district court’s judgment is

AFFIRMED.