United States v. Vega

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS September 18, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-41260 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENITO VEGA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-618-ALL

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Benito Vega appeals his sentence following his guilty-plea

conviction for possession of marijuana with intent to distribute in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Vega argues that

he should have received an offense level reduction under Section

3B1.2 of the United States Sentencing Guidelines because he was

substantially less culpable than the average participant in the

offense. For the following reasons, we AFFIRM the district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. decision.

Section 3B1.2 allows a court to reduce a defendant’s sentence

if he was either a minor or minimal participant in the criminal

activity. The defendant bears the burden of proving that his role

in the offense was minor or minimal,1 and sentence reduction under

this provision is “generally appropriate only if a defendant is

substantially less culpable than the average participant.”2 We

review the district court’s findings on a defendant’s role in an

offense for clear error.3

Based on our review of the record, we conclude that the

district court did not clearly err by refusing to reduce Vega’s

sentence. Although Vega argues that he is less culpable than the

other participants in the drug trafficking scheme because he did

not personally smuggle the marijuana across the river or drive the

vehicle, there is ample evidence in the record that Vega’s role in

the drug trafficking affair was significant. Vega admits, for

example, that he negotiated a fee of approximately $2,000 for the

use of his vehicle to transport the marijuana and, thus, that he

1 United States v. Brown, 7 F.3d 1155, 1160 n.2 (5th Cir. 1993). 2 United States v. Flucas, 99 F.3d 177, 180-81 (5th Cir. 1996); United States v. Franklin, 148 F.3d 451, 461 n.44 (5th Cir. 1998). 3 United States v. Deavours, 219 F.3d 400, 404 (5th Cir. 2000); United States v. Giraldi, 86 F.3d 1368, 1378 (5th Cir.1996) (“The standard of review for a reduction for role in the offense is the clearly erroneous standard.”).

2 knew of and aided the scheme to import and distribute marijuana.

Vega has not shown that the district court’s denial of the

reduction is clearly erroneous. In addition, there is no support

in the record for Vega’s claim that the district court denied him

the reduction simply because no other member of the conspiracy was

prosecuted or because he was a courier.

Vega also contends that 21 U.S.C. § 841 is unconstitutional in

view of Apprendi v. New Jersey.4 Vega acknowledges, however, that

his argument is foreclosed by our decision in United States v.

Slaughter,5 and he seeks merely to preserve the argument for

further review.

The judgment of the district court is AFFIRMED.

4 530 U.S. 466 (2000). 5 238 F.3d 580, 582 (5th Cir. 2000).