          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                FILED
                                                                April 16, 2008
                               No. 07-40576
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JORGE A DUARTE, also known as El Hondureno

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 7:05-CR-926-14


Before HIGGINBOTHAM, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
      Jorge A. Duarte pleaded guilty and was convicted of conspiracy to possess
with the intent to distribute marijuana. The district court sentenced him to 70
months of imprisonment, four years of supervised release, and a $100 special
assessment.
      Duarte argues that he was wrongly denied a downward adjustment for his
minor or minimal role in the offense. The advisory Sentencing Guidelines
provide for a reduction in the base offense level of a “minor” or a “minimal”

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                   No. 07-40576

participant.   U.S.S.G. § 3B1.2.      To merit a reduction under § 3B1.2, the
defendant must have been “substantially less culpable” than the average
participant. § 3B1.2, comment. (n.3(A)). “The defendant bears the burden of
establishing that he is eligible for the adjustment.” United States v. Partida, 385
F.3d 546, 566 (5th Cir. 2004).
      The presentence report indicates that Duarte was one of many lower-level
participants in a drug trafficking organization. He participated for an extended
period of time in activities such as conducting counter-surveillance to monitor
law enforcement activity, driving loads of marijuana, and general loading and
unloading of marijuana. Duarte has not shown that he is substantially less
culpable than the average participant in the conspiracy, given that there were
many lower-level participants such as himself. See § 3B1.2, comment. (n.3(A)).
He has also not shown that his participation was “peripheral to the advancement
of the illicit activity” or that his participation was not “critical to the offense.”
United States v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005); United States v.
Tremelling, 43 F.3d 148, 153 (5th Cir. 1995). We find no reversible error in the
district court’s denial of a reduction under § 3B1.2.
      AFFIRMED.




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