                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 29 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-3069
v.                                            D.C. No. 01-CR-40088-02-SAC
                                                       (D. Kansas)
MANUEL J. HERNANDEZ,

          Defendant - Appellant.




                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant, Manuel J. Hernandez, and a co-defendant, James Raymond

Harris, were charged in a two-count indictment with robbery of a credit union in


      *
       This order and judgment is not binding precedent, except under the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.
violation of 18 U.S.C. §§ 2 and 2113(a) & (d), and with use of a firearm during

the commission of a federal crime of violence in violation 18 U.S.C. §§ 2 and

924(c). Pursuant to a plea agreement, Hernandez pleaded guilty to the count of

robbery in violation of 18 U.S.C. § 2113(d). In exchange for his guilty plea, the

government dismissed the remaining count in the indictment. The district court

accepted Hernandez’ plea and sentenced him to 57 months’ imprisonment and

three years’ supervised release with special conditions of supervision. Hernandez

appeals his sentence arguing that the district court clearly erred in failing to find

he was a minor participant in the robbery and in refusing to reduce his base

offense level under U.S.S.G. § 3B1.2.

      Hernandez’ counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), wherein counsel advises this court that Hernandez’ appeal is

wholly frivolous. Accordingly, counsel has also filed a motion to withdraw.

Hernandez has been given notice of the Anders brief and counsel’s motion to

withdraw. Hernandez has failed to respond to this notice.

      The district court has the discretion under § 3B1.2 to grant a defendant a

two-level reduction in base offense level if it finds that the defendant was a minor

participant in the charged offense. U.S.S.G. § 3B1.2; United States v.

Santistevan, 39 F.3d 250, 254 (10th Cir. 1994). The defendant has the burden to

establish, by a preponderance of the evidence, that he is entitled to a § 3B1.2


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reduction. Santistevan, 39 F.3d at 254. “A trial court’s determination as to

whether a defendant was a minimal or minor participant is a factual finding that

we review only for clear error.” United States v. Lockhart, 37 F.3d 1451, 1455

(10th Cir. 1994).

      Hernandez objected to the Presentence Investigation Report (“PSR”)

arguing that a two-level reduction in his base offense level was appropriate under

§ 3B1.2. The district court addressed Hernandez’ objection at the sentencing

hearing. Hernandez’ counsel stated that Hernandez would rely on the PSR for the

factual basis of his argument. Hernandez himself also declined to present any

additional evidence regarding his participation in the robbery. Using facts set

forth in the PSR, the district court found that Hernandez “drove Harris to the

credit union, supplied Harris with a gun, and went to a predetermined location to

assist Harris in fleeing from the robbery.” The district court found that under

these circumstances, Hernandez was not a minor participant in the robbery and

concluded that a reduction in base offense level under § 3B1.2 was not warranted.

      Hernandez does not dispute the district court’s findings regarding his

participation in the robbery. He does, however, argue that because he did not

enter the credit union, retrieve the money, brandish the gun, or threaten credit

union employees, the district court was required to find him a minor participant

under § 3B1.2. A defendant, however, is not entitled to a base offense level


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reduction under § 3B1.2 merely because he was comparatively less culpable than

his co-defendant. Lockhart, 37 F.3d at 1455; United States v. Caruth, 930 F.2d

811, 815 (10th Cir. 1991). Rather, the defendant must be “substantially less

culpable than the average participant.” U.S.S.G. § 3B1.2, cmt. n.3(A).

      The district court’s determination that Hernandez was not a minor

participant is supported by substantial evidence and is not clearly erroneous.

Consequently, we ascertain no error in the district court’s conclusion not to grant

Hernandez a base offense level reduction under § 3B1.2.

      Upon review of the record, this court concludes that no non-frivolous

grounds for appeal exist. The district court’s sentence is affirmed and counsel’s

motion to withdraw is granted.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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