United States of America, Plaintiff-appellee, v. Peggy Herrington, Defendant-appellant, 112 F.3d 517 (9th Cir. 1997)

MEMORANDUM^** 

Peggy Herrington appeals the sentence imposed upon her guilty plea conviction for conspiracy to commit wire fraud. Herrington received a two-level minor role downward adjustment in her offense level under U.S.S.G. § 3B1.2(b), but contends that the district court erred by failing to give her a three or four-level downward adjustment under U.S.S.G. § 3B1.2(a) for being a minimal participant. Because a defendant's role in the offense is a factual conclusion, rather than a legal one, we review for clear error, see United States v. Davis, 36 F.3d 1424, 1436 (9th Cir. 1994), cert. denied, 115 S. Ct. 1147 (1995), and affirm.

Herrington contends that she should receive a minimal role adjustment because she was the least culpable defendant in the conspiracy. Herrington has the burden of proving by a preponderance of the evidence that she was a minimal participant. Id. A defendant is not automatically entitled to a sentence reduction simply because she is less culpable than co-participants. United States v. Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994), cert. denied, 115 S. Ct. 1268 (1995). She must show she was "substantially less culpable than the average participant." Id.

The district court did not clearly err in denying Herrington's request for a three or four-level downward adjustment for minimal participation because Herrington knew of and assisted in the fraud, recruited another to the conspiracy, and was allotted the second largest portion of the proceeds. See Davis, 36 F.3d at 1437.

AFFIRMED.