Unpublished Disposition, 923 F.2d 864 (9th Cir. 1991)

MEMORANDUM^** 

Elicio Medina-Betancourt appeals from the sentence imposed by the district court following his conviction by a jury of conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. § 846(a) (1), and possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Medina-Betancourt was sentenced to 63 months' confinement, the minimum allowable under the Sentencing Guidelines range of 63 to 78 months calculated by the district court. The mandatory minimum sentence for the offense was five years or 60 months. On appeal he asserts he was entitled to a two-point reduction from the sentencing guideline calculations as a minor participant in the drug transaction under Sec. 3B1.2(b) of the guildelines. We disagree and affirm.

"A finding that the defendant did not play a minimal or minor role in [a] crime depends heavily on the facts of the case." United States v. Williams, 898 F.2d 1400, 1403 (9th Cir. 1990) (citing United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989). "We will not disturb this factual finding unless it is clearly erroneous." Id.

Medina-Betancourt was a participant in the sale of 150.9 grams of Mexican heroin for $30,000 to Drug Enforcement Agents Antonio Huertas, and Efriam Lapuz, while they were working in an undercover capacity. The agents testified that Medina-Betancourt was in the car with his two co-defendants at the time of the sale and held the bag containing heroin while one of the agents examined the contents. Agent Huertas further testified that he struggled briefly with Medina-Betancourt for control of the bag of drugs at the time of arrest.

At the time of sentencing, Medina-Betancourt's counsel stated that he had no objections to the presentence report, except for the failure of the probation officer to recommend a two-point reduction for minor participation.

Medina-Betancourt told the probation officer that he had no prior knowledge that his co-defendants were involved in a narcotics transaction. He stated that he was simply a passenger who had been getting a lift to his work place.

Medina-Betancourt argued at the time of sentencing that he was entitled to a two-point reduction because the agents in the presentence report indicated he was the least culpable of the three defendants. We have previously stated that "a district court is not compelled to determine whether a defendant was or was not the least culpable participant in determining whether that defendant's role was 'minor'." United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir. 1990). In Rexford we rejected the notion that a defendant was automatically entitled to minor participant status in relation to the acts of his co-defendants. "Such an automatic conveyance of minor participant status was not contemplated by the Guidelines, which allow for but do not require, adjustments for roles in offenses committed by multiple participants." Id.

The record reflects that the district court did not clearly err in finding that Medina-Betancourt did not play a minor role. The court specifically took into account the large quantity of drugs found in Medina-Betancourt's possession. The court noted that "we're not talking about a courier of a small amount of drugs...." The record shows that Medina-Betancourt held the heroin during the transaction and struggled to retain possession of it at the time of his arrest. This conduct contradicts his claim that he had no knowledge of the heroin transaction.

A person who seeks a downward adjustment has the burden of proving by a preponderance of the evidence that a reduction is merited. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). Medina-Betancourt has not met this burden because the district court did not believe his contention that he was a mere passenger in the vehicle without knowledge that a sale of heroin was going to take place. We have previously held that a person in possession of significant amounts of heroin is not entitled to a reduction as a minor participant. United States v. Sanchez-Lopez, 879 F.2d 541, 547 (9th Cir. 1989). The district court's finding that Medina-Betancourt did not play a minor role was supported by the evidence in the record.

AFFIRMED.