                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          APR 27 2001
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,
               Plaintiff - Appellee,                    No. 00-4189
          v.                                    (D.C. No. 99-CR-123-01-W)
 LARRY PAUL PATRON,                                       (D. Utah)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      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). The case is therefore submitted without

oral argument.

      Defendant, the driver of a car containing 2.2 kilograms of

methamphetamine, appeals his sentence, challenging the trial court’s refusal to

depart downward for minimal participation in a drug distribution scheme, or, in



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the alternative, to depart downward for minor participation. He likewise

challenges the court’s refusal to depart downward for aberrant behavior.

      The trial court’s finding that Defendant presented no evidence from which

to compare his level of participation is not clearly erroneous. Courier status,

standing alone, does not mandate reduction for either minimal or minor

participation. United States v. Ballard, 16 F.3d 1110, 1115 (10th Cir. 1994).

      The trial court clearly recognized its discretion to depart for aberrant

behavior. It concluded that the facts did not support such a departure. It is

settled that, absent an erroneous legal conclusion that it lacked discretion, the trial

court’s refusal to depart is not subject to review on appeal. United States v.

Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000).

      Finding no error, we AFFIRM Defendant’s conviction and sentence.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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