Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

MEMORANDUM^** 

Mauro appeals from the sentence imposed after he entered a plea of guilty to conspiracy to transport and possess counterfeit traveler's checks in violation of 18 U.S.C. §§ 371, 2314, 2315 (1988). He contends that the district court erred by failing to sentence him as a "minor" participant under Sentencing Guideline Sec. 3B1.2. We have jurisdiction under 18 U.S.C. § 3742(a) (2) and 28 U.S.C. § 1291, and we affirm.

FACTS

Mauro was a participant in a scheme which involved printing and using counterfeit traveler's checks. Mauro assisted by paying for and retrieving the design for the checks and by trimming the edges of the checks.

Mauro then cashed at least $2500 worth of checks in Mazatlan, Puerto Vallarta, California, and Arizona. Mauro began cashing the checks in Mazatlan, but fled to Puerto Vallarta after Mexican authorities arrested some members of the conspiracy. In Arizona, police arrested Mauro. After being released on bail, Mauro and Garland Wilder (Mauro's father) left for California, where Mauro again began cashing checks.

Finally, in December 1989 Mauro was arrested when he attempted to enter the United States from Canada. Mauro pleaded guilty to conspiracy to transport and possess counterfeit traveler's checks. The district court sentenced Mauro to twelve months of confinement, followed by two years of supervised release. The district court refused to treat Mauro as a "minor" participant in the offense, and defendant appeals.

DISCUSSION

The Sentencing Guidelines permit a two-point reduction in the offense level if the defendant was a "minor" participant in the offense. Guideline Sec. 3B1.2(b). A minor participant is one who is "substantially less culpable than the average participant." Id. Sec. 3B1.2, Background. We review the district court's factual determination that Mauro was not a minor participant by the clearly erroneous standard. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989); United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989).

At the district court level, defendant argued that Wilder was the "leader" of the group and that Mauro primarily did what Wilder told him to do.

The existence of a leader will not result in the automatic classification of all other participants as minor. If an individual performs a leadership role, a court may increase that individual's offense level. Guideline Sec. 3B1.1(a). Even though others involved in the offense may be less culpable than the leader, these individuals may not have been minor participants. United States v. Daughtrey, 874 F.2d 213, 216 (4th Cir. 1989). The involvement of more than one person in an offense "does not necessarily mean that one will be considered more or less culpable than another for Role in the Offense purposes." Id.; see also Guideline Sec. 3B1.4 (permitting court to refuse to provide any role adjustments). The proper focus of inquiry is upon Mauro's conduct in relation to the "average participant" and not simply in comparison to the most active member. See United States v. Forbes, 888 F.2d 752, 755 (11th Cir. 1989).

While Wilder may have been more culpable than Mauro, Wilder's role does not render Mauro a minor participant. By adopting and incorporating the findings of the presentence report, the district court found that Mauro was actively involved in all elements of the conspiracy and fully aware of the conspiracy and its magnitude. Mauro participated both in the production and the distribution of the traveler's checks. Applying the clearly erroneous standard, the district court did not err in finding that Mauro was not a minor participant.

AFFIRMED.