                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                            June 14, 2007
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 06-1472
 SALVADOR CHAVEZ-MAGANA, also                           (D.C. No. 05-CR-391-F)
 known as Javier Garcia-Magana,                              (D. Colorado)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.


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

unanimously that oral argument would not materially assist in 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 Salvador Chavez-Magana (Chavez-Magana) appeals his sentence of

135 months’ imprisonment to be followed by five years of supervised release. Chavez-



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Magana pled guilty to knowingly and intentionally possessing with intent to distribute a

quantity of 500 grams or more of a mixture or substance containing a detectable amount

of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). He argues

that the district court committed plain error in failing to sua sponte grant him a two-level

reduction in his base offense level pursuant to U.S.S.G. § 3B1.2 because he was a minor

participant in the crime for which he was convicted. We have jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

                                              I.

       During the execution of a search warrant in August of 2004, special agents from

the Bureau of Immigration and Customs Enforcement (ICE) discovered a concealed

compartment containing drugs in the basement of the residence where it was believed

Chavez-Magana was the sole occupant. The agents also found a firearm and ammunition

in Chavez-Magana’s residence.

       Chavez-Magana was indicted in September of 2005 on one count of possession

with intent to distribute 500 grams or more of a mixture or substance containing a

detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A). In February of 2006, the government filed notice of its intent to rely on

sentence enhancement factors provided in 21 U.S.C. §§ 841(b)(1)(A) and 851. In July of

2006, Chavez-Magana pled guilty to the single count in his indictment pursuant to a plea

agreement with the government. Pursuant to the plea agreement, Chavez-Magana agreed

to plead guilty to the indictment, withdraw all pending motions, forfeit his interest in a

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firearm and ammunition found during the search of his premises, and provide the

government with information. In exchange, the government agreed to withdraw its

previously filed notice of intent to seek sentencing enhancements, recommend a sentence

at the lowest end of the applicable advisory guideline range, and evaluate the information

provided by Chavez-Magana for a potential departure motion pursuant to U.S.S.G. §

5K1.1 or 18 U.S.C. § 3553(e).

        A presentence report (PSR) was filed and reported that after application of a

three-level adjustment for acceptance of responsibility, Chavez-Magana’s adjusted

offense level was 33 and his criminal history category was I, resulting in an advisory

guideline range of 135-168 months of imprisonment. Neither party filed objections to the

sentence guideline calculation set forth in the PSR.

       At Chavez-Magana’s sentencing hearing, the government reported that it would

not move for a downward departure pursuant to U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e)

because Chavez-Magana had not been “candid” in providing information and had

“misstated, if not worse, what the facts were.” Record on Appeal, Vol. IV at 5. The

government stated that Chavez-Magana “did admit only that he was in possession of the

methamphetamine” and the government “assume[d] there is someone out there expecting

payment or some form of compensation for those drugs.” Id. at 5-6. The court adopted

the unchallenged guideline calculation from the PSR and sentenced Chavez-Magana to

135 months of imprisonment and five years of supervised release.




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                                              II.

       Chavez-Magana concedes that his counsel failed to argue that he was entitled to a

two-level reduction as a minor participant pursuant to U.S.S.G. § 3B1.2. Instead, he

argues that the district court should have inferred from the government’s refusal to move

for a downward departure pursuant to U.S.S.G. § 5K1.1 that he was a minor participant in

the criminal activity investigated by the government. He claims that because he could not

provide sufficient information to assist the government’s investigation of a larger drug

conspiracy, the court should have inferred that he was a minor participant, who merely

stored drugs for someone else. In light of defense counsel’s and the government’s

statements regarding the application of § 5K1.1, he asserts that the district court should

have sua sponte applied § 3B1.2 to reduce his base offense level and that the court’s

failure to do so was unreasonable.

       We review an alleged error in sentencing raised for the first time on appeal for

plain error. United States v. Whitney, 229 F.3d 1296, 1308 (10th Cir. 2000). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005). A

defendant bears the burden of establishing by a preponderance of the evidence that he is

entitled to a reduction in base offense level pursuant to § 3B1.2. United States v.

Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999).

       The government argues that because § 3B1.2 is inapplicable to Chavez-Magana’s

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case, no error occurred and Chavez-Magana fails the first element of plain error review.

Section 3B1.2(b) permits a court to reduce a defendant’s base offense level by two levels

if “the defendant was a minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b).

This section can apply to “a defendant who plays a part in committing the offense that

makes him substantially less culpable than the average participant.” United States v.

Salazar-Samaniega, 361 F.3d 1271, 1277 (10th Cir. 2004) (citing U.S.S.G. § 3B1.2 cmt.

n.3(A) (2002)). To determine whether a minor role reduction will apply, the district court

must “focus upon the defendant’s knowledge or lack thereof concerning the scope and

structure of the enterprise and the activities of others involved in the offense.” Id.

(citations omitted) (emphasis added). The commentary provides that “this guideline is

not applicable unless more than one participant was involved in the offense.” See

U.S.S.G. § 3B1.2, cmt. n.2 (2002); Salazar-Samaniega, 361 F.3d at 1277.

       The government asserts that because Chavez-Magana was the only person charged

with or convicted of the offense at issue, this provision which necessarily requires a

comparison of culpability cannot apply here. In addition, the government argues that the

record contains no factual support for Chavez-Magana’s claims, which arise for the first

time on appeal, that other individuals were involved in the offense. The government

notes that Chavez-Magana pled guilty to possession of methamphetamine that was found

in the basement of a residence where he was the sole occupant. See United States v.

Patterson, 472 F.3d 767, 783 (10th Cir. 2006) (concluding that district court did not

clearly err in refusing to apply § 3B1.2 because there was no evidence presented that

                                             -5-
defendant was part of a drug distribution ring and the defendant was the owner and driver

of vehicle where drugs were found).

       Finally, the government also argues that a district court’s decision to grant a

reduction in offense level under § 3B1.2 involves factual findings, which are subject to a

deferential standard of review on appeal. We have previously noted that “[w]hen a

factual issue is not raised below, there is no record on which to base our review” and held

generally that “questions of fact capable of resolution by the district court upon proper

objection at sentencing can never constitute plain error.” United States v. Bush, 405 F.3d

909, 922 (10th Cir. 2005) (quotations and citations omitted).

       Although we do not agree with the government that a defendant who is the only

person charged or convicted in connection with a criminal operation is necessarily

ineligible for the minor participant adjustment, in this case there was no evidence that

other persons were involved in the offense to which Chavez-Magana pled guilty. We

therefore hold that § 3B1.2 cannot apply. Further, because Chavez-Magana failed to put

forth any evidence on this issue, there is no factual record for us to review to determine

whether he was entitled to a reduction in offense level pursuant to § 3B1.2. To the extent

Chavez-Magana argues that his sentence is unreasonable, we have held that a sentence

within the applicable guideline range is presumptively reasonable. United States v.

Terrell, 445 F.3d 1261, 1264 (10th Cir. 2006). Chavez-Magana has failed to rebut this

presumption.




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                                IV.

We AFFIRM the district court.


                                      Entered for the Court


                                      Mary Beck Briscoe
                                      Circuit Judge




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