                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      May 26, 2006
                    UNITED STATES CO URT O F APPEALS
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                    No. 05-8112
          v.                                            D. W yoming
 RAM ON BECERRA-M ONTES, a/k/a                 (D.C. No. 05-CR-28-02-ABJ)
 Zoilo Cruz-Carillo,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.


      M r. Ramon Becerra-M ontes appeals his sentence, contending that it should

have been reduced under U nited States Sentencing Guidelines (U SSG) § 3B1.2

because he was a minimal participant in the drug-trafficking crimes to which he

pleaded guilty. See USSG § 3B1.2 (providing four-level reduction for “minimal



      *
       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 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 This order and judgment is not binding precedent, except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.
participant”; two-level reduction for “minor participant”; and three-level

reduction for “cases falling between”). Because the district court could properly

find that the evidence in the record did not establish that M r. Becerra-M ontes was

a minimal participant, we affirm the judgment of the district court.

I.    B ACKGR OU N D

      M r. Becerra-M ontes pleaded guilty to one count of conspiracy to possess

with intent to distribute both methamphetamine and heroin; one count of

possession with intent to distribute methamphetamine; and one count of

possession with intent to distribute heroin. Before sentencing he filed a motion

requesting a four-level reduction in his offense level because he was a minimal

participant in the crimes. See id.

      According to the presentence report, on December 17, 2004, Simon

Aleman-Blanco and M r. Becerra-M ontes were stopped for following too closely

while traveling on I-80 near Cheyenne, W yoming. The vehicle they were

traveling in was registered to Claudia Campos. In response to the trooper’s

questions, Aleman-Blanco stated that the owner of the car w as named “Gloria,”

but he did not remember her last name or address, and that he and M r. Becerra-

M ontes were traveling to Nebraska to find work. Questioned separately,

M r. Becerra-M ontes also told the trooper that they were on their way to Nebraska

to look for w ork. He correctly named the owner of the vehicle as “Claudia,”

though he said that he knew her only vaguely and that she was a friend of

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Aleman-Blanco. Eventually, both consented to a search of the vehicle, which

revealed a hidden compartment beneath the dashboard containing 11 separate

packages of controlled substances..

       A law -enforcement agent was sent to interview Claudia C ampos. She said

that she had met M r. Becerra-M ontes through his brother, Carlos Contreras, her

former boyfriend. According to Campos, in the summer of 2004 Contreras

discovered the hidden compartment while installing a stereo in the vehicle. That

October M r. Becerra-M ontes told Campos that he wanted to buy the car, and in

early November he brought Aleman-Blanco to meet Campos. Campos discussed

the hidden compartment with Aleman-Blanco, who then purchased the car from

her.

       At his change-of-plea hearing, M r. Becerra-M ontes admitted only to the

basic facts: that he and Aleman-Blanco were stopped while transporting drugs;

that he knew the drugs were there and had helped drive; and that a search of the

vehicle revealed 3.7 pounds of methamphetamine and 8 pounds of heroin. W hen

the court asked him about Campos and Contreras, he responded, “I w as only

coming to plead guilty for the drugs in the car. W hat am I supposed to say about

that?” R. Vol. 2 at 20-21. In his statement filed before sentencing, he again said

that he and Aleman-Blanco had agreed to go to Nebraska to look for work, and

that Aleman-Blanco had borrowed the car from Campos. He did not know about

the hidden compartment, he said, and “first became aware that there were drugs in

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the car w hile w e were on the road. Aleman said to me . . . that there are drugs in

the car.” R. Vol. 6 at 3-4.

      The district court concluded that M r. Becerra-M ontes had not demonstrated

that he was a minimal participant because there were too many “large holes and

unaccounted for time and activity during a critical period.” R. Vol. 3 at 22-23.

M r. B ecerra-M ontes now appeals that decision.

II.   D ISC USSIO N

      W e review sentences under a reasonableness standard “guided by the

factors set forth in 18 U.S.C. § 3553(a),” including the Guidelines. United States

v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “A sentence cannot . . . be

considered reasonable . . . if it was based on an improper determination of the

applicable Guidelines range.” Id. at 1055. “[I]n considering the district court’s

application of the Guidelines, we review factual findings for clear error and legal

determinations de novo.” Id. at 1054. “A trial court’s findings concerning a

defendant’s role in a particular offense are treated by an appellate court as factual

findings, which are subject to a deferential review under the clearly erroneous

standard.” United States v. Santistevan, 39 F.3d 250, 253 (10th Cir. 1994)

(internal quotation marks omitted).

      “It is the defendant’s burden to establish, by a preponderance of the

evidence, his entitlement to an offense level reduction under § 3B1.2,” id. at 254,

and “the court, in weighing the totality of the circumstances, is not required to

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find, based solely on the defendant’s bare assertion, that such a role adjustment is

warranted,” USSG § 3B1.2 cmt. 3(C). There is nothing in the record indicating

M r. Becerra-M ontes’s role was minor, other than his “bare assertion.” See United

States v. Salazar-Samaniega, 361 F.3d 1271, 1278 (10th Cir. 2004) (“W here there

are two permissible views of the evidence, the factfinder’s choice between them

cannot be clearly erroneous. A defendant’s own testimony that others w ere more

heavily involved in a criminal scheme may not suffice to prove his minor or

minimal participation, even if uncontradicted by other evidence.” (internal

quotation marks and citation omitted)).

      M r. Becerra-M ontes tries to turn this lack of evidence on its head,

suggesting that it cuts in favor of a minor-participant reduction because it show s

that he had limited knowledge of the crime. “The district court’s finding of

limited information results directly from Becerra-M ontes’ lack of knowledge or

understanding of the scope and structure of the enterprise and of the activities of

others.” Aplt. Br. at 16. It surely cannot be the case, however, that a defendant

who claims to have limited knowledge must therefore be a minor participant in

the crime. The district court could quite properly infer that M r. Becerra-M ontes

simply did not want to implicate others and disclose the full extent of his

involvement.

      The district court’s finding that M r. Becerra-M ontes had not demonstrated

that he was a minor participant was not clear error. The Guidelines range was

                                          -5-
therefore properly calculated and considered, and M r. Becerra-M ontes does not

otherw ise challenge his sentence as unreasonable. Kristl, 437 F.3d at 1054

(sentence within a properly calculated Guidelines range is entitled to a

presumption of reasonableness).

III.   C ON CLU SIO N

       W e AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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