                            No. 99-40638
                                 -1-

                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 99-40638
                         Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

SANTOS LOPEZ-RAMIREZ,

                                           Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. M-98-CR-450-ALL
                      --------------------
                         April 13, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Santos Lopez-Ramirez (“Lopez”) appeals his sentence

following his guilty plea to conspiracy to possess, with the

intent to distribute, heroin.   Lopez asserts that the district

court misapplied U.S.S.G. § 3B1.2(b) by denying him a two-level

minor role adjustment on the basis of: (1) a prior drug offense

that was not part of the relevant conduct in the instant case and



(2) his instant co-conspirator’s lack of involvement in the prior

drug offense.

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 99-40638
                                -2-

     Under § 3B1.2(b), based on the defendant’s role in the

offense, the defendant’s offense level should be reduced by two

levels if the defendant was a minor participant in the criminal

activity.   The determination of a defendant’s role in the offense

is to be made on the basis of all conduct within the scope of the

relevant conduct, and not solely on the basis of elements and

acts cited in the count of conviction.    U.S.S.G. Ch.3, Pt.B,

intro. comment.

     In making its § 3B1.2(b) minor role determination, the

district court did consider a prior drug offense that was not

part of the relevant conduct for Lopez’s instant offense.      It is

clear, however, that the district court considered that prior

offense for the purpose of evaluating the credibility of Lopez’s

assertion that he was merely following his co-conspirator’s

orders with respect to the instant offense.    Moreover, the

district court made implicit findings supporting its minor role

determination by adopting the presentence report, which had

determined that Lopez was not entitled to a minor role adjustment

based on his relevant conduct.    The district court thus

sufficiently articulated a proper factual basis for denying Lopez

a minor participant adjustment.    See United States v. Gallardo-

Trapero, 185 F.3d 307, 324 (5th Cir. 1999), cert. denied, 120 S.

Ct. 961 (2000).

     The judgment of the district court is AFFIRMED.
