                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        August 4, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,
          Plaintiff-Appellee,                           No. 05-8119
 v.                                              (D.C. No. 05-CR-111-ABJ)
 JOSEPH CHRISTOPHER SORIA NO,                             (D . W yo.)
          Defendant-Appellant.


                                OR D ER AND JUDGM ENT *


Before KELLY, M cK AY, and LUCERO, 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.

      Appellant pleaded guilty to the charges of (1) felon in possession of a

firearm and (2) possession of a firearm not registered in the National Firearms

Registration and Transfer Record. He was sentenced to eighty-four months’

imprisonment–the low end of the applicable advisory guideline range. Appellant


      *
       This order and judgment is not binding precedent, except under the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.
argues that the district court erred in denying him a downward departure in the

form of a mitigating role adjustment.

      W e review the denial of a reduction for a mitigating role in the offense for

clear error. United States v. Chavez, 229 F.3d 946, 956 (10th Cir. 2000). A

defendant has the burden of proving by a preponderance of evidence that he is

entitled to a reduction pursuant to United States Sentencing Guideline § 3B1.2.

United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999). The sentencing

guidelines permit a district court to decrease a defendant’s base offense level for

minor participation if the defendant’s role in the offense makes him “substantially

less culpable than the average participant.” U.S.S.G. § 3B1.2, App. Note 3(A ).

Because the application of § 3B1.2 is heavily dependent upon the facts of a

particular case, substantial deference is afforded to the district court’s assessment.

See United States v. Donaldson, 915 F.2d 612, 615-16 (10th Cir. 1990).

      H owever, § 3B 1.2 does not apply to a person convicted for his own

possession of a firearm. It states plainly: “This guideline is not applicable unless

more than one participant was involved in the offense.” U.S.S.G. § 3B1.2, App.

Note 2. Appellant cannot point to a “participant” in his two possession offenses

except himself. No one else is criminally responsible for his own possession of

the sawed-off shotgun. Appellant’s attempts to blame former owners of the

shotgun, naming them as participants in his crime, is misplaced. That other

persons may have independently violated gun possession laws avails him nothing.

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See United States v. Whitener, 80 Fed. Appx. 94, 95 (10th Cir. 2003) (“[The

defendant] makes no argument that he was a minor participant in the possession

of a firearm [which was] the crime that formed the basis of his offense-level

calculation. Nor could he. He either possessed a gun or did not. There were no

other participants in his possession of the gun.”).

      W e therefore A FFIR M the district court’s sentence of Appellant.

                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge




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