Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^** 

Martin Heras-Montoya appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to a one count information charging him with possession with intent to distribute 96 kilograms of marijuana in violation of Sec. 841(a) (1). Heras-Montoya contends that the district court erred by concluding that he was not entitled to either a four or two level reduction in his base offense level for his status as a minimal or minor participant pursuant to U.S.S.G. Sec. 3B1.2, and by failing to make factual findings on the issue whether he was merely a courier. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review de novo the district court's construction and interpretation of the Guidelines. United States v. Carvajal, 905 F.2d 1292, 1294 (9th Cir. 1990); United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir. 1989). We review for clear error the district court's factual determination of whether a defendant is a minor participant in a criminal activity. United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989).

A downward adjustment under the Guidelines for minor participation in a criminal activity is to be used infrequently. United States v. Christman, 894 F.2d 339, 341 (9th Cir. 1990). "A district court's finding that a defendant does not qualify for minimal or minor participant status is 'heavily dependent on the facts of the particular case,' and should be upheld unless clearly erroneous." Gillock, 886 F.2d at 222 (quoting U.S.S.G. Sec. 3B1.2, commentary). The defendant has the burden of proving his minimal or minor role by a preponderance of the evidence. United States v. Howard, 894 F.2d 1085, 1089-90 (9th Cir. 1990). Culpability rather than courier status is the key in determining whether a role reduction is required in a drug offense. United States v. Zweber, 913 F.2d 705, 710 (9th Cir. 1990).

Here, Heras-Montoya and Arturo Fierro purchased an automobile which was then registered using Heras-Montoya's address in the United States. Fierro allegedly offered Heras-Montoya $500 to drive the automobile to San Diego. Because of the large amount of money he was being offered and the strong smell of vanilla which he knew was used as a cover for marijuana, Heras-Montoya strongly suspected that the automobile contained marijuana. Nevertheless, Heras-Montoya agreed to drive the automobile to San Diego. On these facts the district court did not clearly err by concluding that Heras-Montoya did not deserve a downward adjustment for a minimal or minor role in the offense. See Gillock, 886 F.2d at 222; Sanchez-Lopez, 879 F.2d at 557. Furthermore, the district court appeared to adopt the conclusions of the presentence report and was not required to make an express finding that Heras-Montoya was not a mere courier in the offense. See United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990).

AFFIRMED.