                          NONPRECEDENTIAL DISPOSITION
                           To be cited only in accordance with
                                   Fed. R. App. P. 32.1



              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                   Submitted May 5, 2010
                                   Decided May 19, 2010

                                           Before

                           FRANK H. EASTERBROOK, Chief Judge

                           JOHN L. COFFEY, Circuit Judge

                           DAVID F. HAMILTON, Circuit Judge

No. 09-1736

UNITED STATES OF AMERICA,                           Appeal from the United States District
     Plaintiff-Appellee,                            Court for the Northern District of Illinois,
                                                    Eastern Division.
       v.
                                                    No. 08 CR 521-2
RAUL G. ROJAS,
     Defendant-Appellant.                           Suzanne B. Conlon,
                                                    Judge.

                                         ORDER

        Raul Rojas made three round trips as a hired driver between Los Angeles, California
and Chicago, Illinois. On each of these trips, he transported cocaine hidden in his truck to
Chicago and returned to Los Angeles with the cash payments. He was charged and
pleaded guilty to one count of conspiring to possess with intent to distribute cocaine and
two counts of possessing with intent to distribute cocaine. 21 U.S.C. §§ 846, 841(a)(1). The
district court sentenced him on each count to 10-year terms of imprisonment to run
concurrent and concurrent with each other count, which is the mandatory minimum on
each count in light of the quantity of cocaine involved. See 21 U.S.C. § 841(b)(1)(A)(ii).
Rojas appealed, but his appointed lawyers ask leave of this court to withdraw, see Anders v.
California, 386 U.S. 738 (1967), stating that there are no meritorious issues to pursue. Rojas
did not respond to our invitation to comment on counsel’s motion to withdraw. See C IR.
No. 09-1736                                                                               Page 2

R. 51(b). We review only the potential issues identified by counsel in the facially adequate
brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

        Rojas told his counsel that he had no intention of wanting his guilty pleas vacated,
so his counsel properly bypassed any discussion as to the adequacy of the plea colloquy or
the voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002).

        Counsel initially considered whether their client could argue that the district court
erred in denying him a two-level reduction under U.S.S.G. § 3B1.2(b) as a “minor
participant” in the conspiracy. “When seeking a minor participant classification it is the
defendant’s burden to demonstrate by a preponderance of the evidence that he was
‘substantially less culpable’ than the other participants.” United States v. Mendoza, 457 F.3d
726, 729 (7th Cir. 2006); U.S.S.G. § 3B1.2(b) cmt. n.3(A). Rojas argued that he was “no more
than a simple courier” in the scheme of events and played no role in importing the cocaine
or distributing it after it reached Chicago. He argued he was fungible and could have been
replaced at any time by his coconspirators who, in fact, hired a different driver for two
other round trips. The district court concluded, however, that Rojas may not have been the
“most culpable” coconspirator but still played a significant role transporting large amounts
of cocaine and money across the country.

         We review the district court’s factual findings for clear error. See United States v.
Arocho, 305 F.3d 627, 641 (7th Cir. 2002). Rojas pleaded guilty to conspiring with the
California supplier and the two Chicago distributors, and in this case each member of the
small criminal enterprise was essential to the operation of the drug scheme. See United
States v. McKee, 389 F.3d 697, 700 (7th Cir. 2004 ). It is irrelevant that he argued that he was
less involved, for “couriers are an indispensable part of drug dealing networks. Without
someone to take the drugs across the border, the drugs will never reach their illicit market .
. . [E]ven if the defendant were purely a courier having no knowledge of the other aspects
of the drug-dealing operation, the defendant might nonetheless be a highly culpable
participant in the operation.” Mendoza, 457 F.3d at 729 (quoting United States v. Osbourne,
931 F.2d 1139 (7th Cir. 1991)); United States v. Panaigua-Verdugo, 537 F.3d 722, 725 (7th Cir.
2008). Rojas hauled 24 kilograms of cocaine to Chicago—roughly 50 to 60 percent of the
total involved in the conspiracy—and returned with the cash payments. Even though he
argued that he neither imported nor sold the cocaine, he nevertheless served as a very
trusted and essential link between the supplier and distributers in the delivery of large
sums of money and cocaine while transporting them across the country. Thus, he was
clearly vital to the conspiracy, and we therefore agree with Rojas’ counsel that it would be
frivolous to challenge the district court’s refusal to characterize him as a minor participant.
See United States v. Lopez, 545 F.3d 515, 516-17 (7th Cir. 2008) (upholding the denial of a
minor-role reduction for the defendant who stored drugs and made deliveries of large
No. 09-1736                                                                               Page 3

quantities of cocaine); Panaigua-Verdugo, 537 F.3d at 724-25 (concluding that the district
court did not clearly err in denying a minor-role reduction to the defendant who served as
the courier between the seller and buyer during four of seven transactions).

        In any event, a minor-role reduction would have helped Rojas only if the district
court found him eligible for the “safety valve,” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a),
which permits courts to sentence certain nonviolent, first-time drug offenders below the
statutory minimum. To be eligible for safety-valve relief, a defendant must, among other
things, truthfully provide to the government “all information and evidence” he has
“concerning the offense or offenses that were part of the same course of conduct or of a
common scheme or plan.” U.S.S.G. § 5C1.2(a)(5). The defendant bears the burden of
proving by a preponderance of the evidence that he is eligible for safety-valve relief. United
States v. Olivas-Ramirez, 487 F.3d 512, 516-17 (7th Cir. 2007). At sentencing the government
argued that Rojas had lied to investigators during the safety-valve proffer. Prior to the time
of sentencing, Rojas had told the arresting officers that he met with the supplier in Los
Angeles during each of his three trips, and revealed to the agents that the drugs and cash
had been hidden inside the truck’s transmission in a trap that could hold up to 11
kilograms of cocaine. However, during the proffer he denied knowledge concerning the
location of the trap and insisted that he met the supplier only on his third trip. At
sentencing, Rojas’s lawyer stated that these inconsistencies were attributable to a language
barrier between him and the agents, but the district court disagreed and found that he had
failed to meet his burden of proving that he was completely forthright and honest with the
government during the proffering of his testimony.

        Here, also, our review is for clear error. See United States v. Montes, 381 F.3d 631, 634
(7th Cir. 2004). Rojas’ lawyer asserted that his client’s truthfulness had been obscured by
faulty translation and this was adequate to meet his burden of proving by a preponderance
of the evidence that he provided a full and honest disclosure on behalf of the government
to the court. See id. at 637; United States v. Ponce, 358 F.3d 466, 468 (7th Cir. 2004). The
district court found, however, that the discrepancies between Rojas’s two accounts were
not minor details that can be easily brushed aside because the inconsistencies speak to the
level of his involvement in the conspiracy; he could not simply rest on his lawyer’s
assertion that the agents had misunderstood him. See Montes, 381 F.3d at 637; United States
v. Martinez, 301 F.3d 860, 866 (7th Cir. 2002). Accordingly, based on this record we agree
with defense counsel that it would be frivolous to argue that the district court clearly erred
in finding Rojas ineligible for the safety valve exception.

       Finally, counsel considered whether Rojas could challenge the reasonableness of his
prison sentence. Rojas’s guidelines range would have been 108 to 135 months if not for the
120-month statutory minimum, see 21 U.S.C. § 841(b)(1)(A)(ii), and the court imposed the
No. 09-1736                                                                              Page 4

minimum sentence of 120 months. Having concluded that Rojas was ineligible for the
safety-valve relief, the district court was barred from reducing his sentence as requested.
We agree with his counsel that any challenge to the reasonableness of Rojas’s sentence
would be frivolous. See Kimbrough v. United States, 552 U.S. 85, 108 (2007); United States v.
Roberson, 474 F.3d 432, 434 (7th Cir. 2007).

       The appeal is DISMISSED, and counsel’s motion to withdraw is GRANTED.
