                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 1 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-6435
                                                    (D.C. No. 00-CR-96-R)
    LARRY LEE TAYLOR, JR.,                               (W.D. Okla.)
    a/k/a Fat Cuzz,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before ANDERSON , BALDOCK , Circuit Judges, and BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      On August 16, 2000, Larry Lee Taylor, Jr. entered a guilty plea to robbery

by force while using a firearm, a violation of 18 U.S.C. § 2113(a) and (d) (count

one), and brandishing a firearm in relation to a crime of violence, a violation of

18 U.S.C. § 924(c)(1)(A)(ii) (count two). The district court sentenced Taylor to

sixty months on count one and eighty-four months on count two, with the

sentences to run consecutively. Taylor appeals from this sentence, arguing that

the district court should have awarded him a reduction in base offense level. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.

      The sole issue on appeal is whether the district court erred by refusing to

grant Taylor a two-level reduction in base offense level as a minor participant

pursuant to U.S. Sentencing Guidelines Manual § 3B1.2(b). “Section 3B1.2

provides the district court with discretion to grant a base offense level reduction

if it finds a defendant is less culpable relative to other participants in a given

offense.” United States v. Santistevan, 39 F.3d 250, 254 (10th Cir. 1994).

      The facts surrounding Taylor’s role in the crime are undisputed. On April

25, 2000, Taylor drove with Esi McNeal and Nedra Hendricks to the All America

Bank in Oklahoma City. Hendricks went in the bank to look for security guards

or male employees. After Hendricks returned, Taylor went in the bank to again

check for security guards. The three then drove around for approximately twenty

minutes before returning to the bank. Next, McNeal and Taylor, armed with


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handguns, entered the bank. McNeal pointed his gun at a teller and ordered bank

employees to give him the money from the cash drawers. While McNeal was

collecting the money, Taylor held two female bank employees at gunpoint.

McNeal and Taylor left the bank with $11,557.00, and Hendricks drove them all

to an apartment where they divided the proceeds.

      We review the district court’s decision for clear error, because the court’s

determination that Taylor was more than a minor participant is a finding of fact.

See United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999). Under the

clearly erroneous standard, a district court’s findings of fact will not be reversed

unless they are without support in the record, or if after reviewing the evidence,

the court is left with the definite and firm conviction that a mistake has been

made. Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886, 892 (10th Cir. 2000).

Moreover, “a defendant has the burden of establishing, by a preponderance of the

evidence, that he is entitled to a reduction in base offense level under § 3B1.2.”

Onheiber, 173 F.3d at 1258.

      In his objection to the presentence investigation report, Taylor attempted to

portray his role as minor in comparison to McNeal’s role as leader of the group.

In rejecting the contention that Taylor was a minor participant, the district court

focused on the fact that Taylor had held bank employees at gunpoint during the

robbery. Other facts also support the conclusion that Taylor’s role was not minor.


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Before the robbery, Taylor entered the bank to look for security guards. After the

robbery, Taylor received over half the stolen money. The record amply supports

the district court’s determination that Taylor’s role in the offense was not minor

or minimal. The district court’s findings are not clearly erroneous.

      The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




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