United States of America, Plaintiff-appellee, v. Porfirio Paz-aguirre, Defendant-appellant, 956 F.2d 279 (10th Cir. 1992)

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Porfirio Paz-Aguirre appeals the sentence imposed upon him after his guilty plea to possession with intent to distribute less than fifty kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (D). The only issue on appeal is whether the district court either misapplied U.S.S.G. § 3B1.2 or was clearly erroneous when it denied minor participant status to defendant, which would have entitled him to a two point reduction in his offense level.

Defendant points to application note 2 under U.S.S.G. § 3B1.2, which indicates that it may be appropriate to give a downward adjustment when "an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs." The evidence indicated that defendant and another individual were apprehended crossing the border with Mexico in a car owned by defendant. In a hidden compartment built between the fuel tank and the luggage area of the vehicle there were twenty packages containing thirty-three kilograms of marijuana. Defendant admitted that he knew the marijuana was there and he intended to deliver it to someone in California for distribution. Defendant's case for minor participant status is based upon his statement given to the probation officer that some other person in New Mexico constructed the secret compartment and concealed the marijuana, that defendant was not aware how much marijuana was placed in his car, "My job was only to transport the marijuana. That is, I was hired to drive the car containing the marijuana to California where the marijuana would be turned over to someone else for, I presume, distribution." II R. 3.

The district court rejected minor participant status, saying only

The defendant owned the car, he was driving the car. There is just no indication of minor participant in this case, in this matter. Therefore, I will not grant that.

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The court takes judicial notice that defendant was an equal participant in the commission of the offense, which involved thirty-three kilograms of marijuana. Actually, if he was anything, he was more than equal. If anything, he was a major participant.

I Supp.R. 9-10.

We cannot hold that the district court either misapplied the guidelines or made a clearly erroneous fact finding. Our cases make clear that mere courier status by itself is not enough to earn a defendant a two point reduction as a minor participant. See, e.g., United States v. McCann, 940 F.2d 1352, 1359 (10th Cir. 1991); United States v. Arredondo-Santos, 911 F.2d 424, 426 (10th Cir. 1990). Thirty-three kilos of marijuana is not an insignificant amount. Defendant was the owner of the vehicle and surely the secret compartment was either built into the vehicle or filled with marijuana with his knowledge. There is simply no evidence of other persons being significantly more culpable than defendant in this smuggling operation.

AFFIRMED. The mandate shall issue forthwith.