Unpublished Disposition, 923 F.2d 864 (9th Cir. 1991)

MEMORANDUM^** 

Appellant appeals from a sentence imposed for possession of 101 pounds of marijuana with intent to distribute. Appellant was to be paid $500 to drive the marijuana through the border checkpoint from Mexico into California. He was arrested when border patrol agents found the marijuana in the car trunk.

Appellant was sentenced to 27 months. The court found that the appropriate offense level was 20, gave him a two point reduction for acceptance of responsibility, a two point reduction for his minor role in the offense, and a reduction in his criminal history score from IV to III. We affirm the district court's sentence of 27 months.

Appellant argues that he is entitled to have two more points deducted from his offense level because his role in the offense was minimal, not just minor, under the terms of U.S.S.G. 3B1.2. He directs us to Application Note 2 to this section, which expands on the distinction:

It is intended that the downward adjustment for a minimal participant will be used infrequently. It would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.

The district court found that 101 pounds of marijuana was not a "small amount" within the meaning of this illustration and therefore declined to grant appellant the additional two-point reduction for minimal participation. We review for clear error the district court's determination of whether a defendant is a minor or minimal participant in a criminal offense under the particular facts of the offense. United States v. Zweber, 913 F.2d 705, 708 (9th Cir. 1990).

The district court did not clearly err. We have made clear that "courier status alone does not require a role reduction. Culpability, not courier status, is the key." Zweber, 913 F.2d at 710. We have also made clear that the quantity of drugs carried may be a factor weighing against the reduction. United States v. Sanchez, 908 F.2d 1443, 1450 (9th Cir. 1990). Accord United States v. Buenrostro, 868 F.2d 135, 137-38 (5th Cir. 1989), cert. denied, 110 S. Ct. 1957 (1990). The quantity of marijuana here was such that it was highly improbable that appellant could have been unaware of its significance and danger, even if he were unsure of its precise weight.

AFFIRMED.