
USCA1 Opinion

	




          November 19, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1722                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 RICARDO JOSE NOCHE,                                Defendant, Appellant.                                 ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                               Campbell, Circuit Judge,                                         _____________                              Skinner,* District Judge.                                        ______________                                 ____________________                Laura   Maldonado-Rodr guez,   Assistant   Federal   Public                ___________________________          Defender,   with  whom  Benicio  S nchez-Rivera,  Federal  Public                                  _______________________          Defender, was on brief for appellant.                Jeanette  Mercado-R os,  Assistant United  States Attorney,                ______________________          with whom Daniel  F. L pez-Romo, United States Attorney, and Jos                     _____________________                              ____          A. Quiles-Espinosa, Senior Litigation  Counsel, were on brief for          __________________          appellee.                                 ____________________                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    Per Curiam.  Appellant Ricardo Jos  Noche and three co-                    __________          defendants pled  guilty to  aiding and  abetting the  knowing and          intentional possession  of 2,000 pounds of  marijuana with intent          to distribute.   On May  28, 1992, the  district court  sentenced          appellant  to  78  months  in prison,  five  years  of supervised          release, and a $50 fine.  Appellant now asserts that the district          court erred in  refusing to  grant a downward  adjustment to  his          sentence as either a minimal or minor participant pursuant to the          United States  Sentencing Guidelines ("U.S.S.G.")    3B1.2(a) and          (b) respectively.                    Appellant has the burden  of proving his entitlement to          a downward adjustment to his sentence.  U.S. v. Ocasio, 914  F.2d                                                  ____    ______          330, 332-33 (1st. Cir.  1990).  Only defendants who  are "plainly          among  the least culpable  of those involved in  the conduct of a          group"  are entitled  to  a  downward  adjustment  as  a  minimal          participant,   U.S. v.  DiIorio, 948  F.2d 1,  5 (1st  Cir. 1991)                         ____     _______          (quoting  U.S.S.G.   3B1.2(a), Application  Note 1), and  to be a          minor  participant a  defendant must  be less  culpable than  the          average participant.  U.S.  v. Rosado-Sierra, 938 F.2d 1,  1 (1st                                ____     _____________          Cir. 1991).                    We review a district court's determination of whether a          defendant  played a  minor or  minimal role  in an  offense under            3B1.2 only for clear error.  DiIorio, 948 F.2d at 5.                                         _______                    In the present case,  both parties agree that appellant          and  his  co-defendants were  on  a vessel  that  contained 2,000          pounds of marijuana;  they aided and abetted the  possession with          intent  to  distribute that  marijuana,  and  expected $3,000  in          return.   In  addition, during  his plea,  appellant acknowledged          that he knew that the  ship was to be used to  smuggle marijuana.          From this evidence, the district court reasonably determined that          appellant was an active and essential participant in the offense.                    Moreover,  appellant never  alleged  that he  was  less          culpable than  his co-defendants.  Instead, he attempted to argue          that the incident was part  of a larger drug smuggling  scheme in          which he  played a minor role.  The only evidence that he offered          in  support of this theory, however, was testimony that there was          a captain of the ship who abandoned it due to engine trouble, and          the fact that he was promised payment for his role in the crime.           Appellant  could point to no  other individuals who  were part of          the  alleged scheme.  He  offered only speculation  that if there          was a  captain and someone who  paid him, there must  have been a          larger criminal structure.                    The court committed no  clear error in determining that          appellant failed  to  prove a  larger  criminal scheme  and  that          appellant played more than  a minor role in the  charged offense.          Thus, it correctly denied  the downward adjustment to appellant's          sentence.  We affirm the district court's judgment.                    Affirmed.                    ________                                         -3-
