                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1473

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

C RISANTO M ARTINEZ L OPEZ,
                                          Defendant-Appellant.


          Appeal from the United States District Court
              for the Western District of Wisconsin.
          No. 07 CR 146—Barbara B. Crabb, Chief Judge.



    A RGUED A UGUST 6, 2008—D ECIDED S EPTEMBER 19, 2008




  Before E ASTERBROOK, Chief Judge, and K ANNE and W OOD ,
Circuit Judges.
  K ANNE, Circuit Judge. Crisanto Martinez Lopez pleaded
guilty to possessing cocaine with intent to distribute after
Wisconsin police arrested him at the scene of a controlled
buy with over two pounds of cocaine shoved into his
pants. He received a within-guidelines sentence of 108
months’ imprisonment. On appeal he argues that he
should have received a two-level reduction as a minor
2                                               No. 08-1473

participant. Because the district court did not clearly err
when it rejected Martinez Lopez’s argument, we affirm.


                       I. HISTORY
  In October 2007 an informant told officers with the Dane
County Narcotics and Gang Task Force that a man
known as “Laz” was selling cocaine in the Madison,
Wisconsin, area. The informant explained that he was one
of Laz’s regular customers and had bought cocaine in ½- to
1-kilogram quantities from Laz on multiple occasions. The
informant also said that he had discovered what he
believed to be Laz’s real identity: Crisanto Martinez Lopez.
  Armed with this information, the task-force officers
quickly directed the informant to arrange a controlled
buy from Laz. Martinez Lopez arrived at the prearranged
location and was promptly arrested. The officers re-
covered 1.1 kilograms of cocaine from the waistband of
his pants and financial documents including Martinez
Lopez’s apartment lease and bank statements from his
car. Following up on this information, the officers
learned that Martinez Lopez still resided in the apart-
ment listed on the lease and that he shared the apartment
with his sister and brother-in-law. After Martinez Lopez’s
sister gave police consent to search the apartment, the
officers recovered 227 grams of crack, 987 grams of heroin,
303 grams of cocaine, three guns hidden throughout the
house with ammunition, six cell phones, and drug para-
phernalia including scales, utility knives, baggies, tape,
and other items for packaging drugs.
No. 08-1473                                                 3

  Martinez Lopez later confessed that he was recruited
to join the drug operation by his uncle, Lazaro Martinez.
Subsequent investigation revealed that the informant had
been dealing with Lazaro Martinez—not Martinez
Lopez—in setting up the controlled buy and the previous
transactions. As far as the controlled buy, Martinez
Lopez’s known involvement was limited to delivering the
cocaine.
  Martinez Lopez pleaded guilty to a one-count indictment
charging him with possessing powder cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1). At
sentencing the district court counted in the overall drug
quantity not only the drugs in Martinez Lopez’s house
and the cocaine he possessed when arrested, but also the
6 ½ to 12 ½ kilograms of cocaine that Martinez Lopez
had delivered to the informant on prior occasions. Based
on that total the court set a base offense level of 34, see
U.S.S.G. § 2D1.1(c)(3), and added two levels for possession
of the guns, see id. § 2D.1(b)(1). The court then granted
Martinez Lopez a three-level decrease for acceptance
of responsibility, see U.S.S.G. § 3E1.1, and a two-level
reduction under the “safety valve,” see id. §§ 5C1.2,
2D1.1(b)(11), but refused to grant a further two-level
reduction under § 3B1.2 as a minor participant. The
court reasoned that Martinez Lopez’s “constant and
continuing involvement with the drugs, storing them,
delivering them, taking care of them, everything that
he did shows that he was a pretty active participant in
this conspiracy and that he wasn’t simply carrying out
very, very minor tasks.” Martinez Lopez’s total offense
level of 31 and criminal history category of I yielded a
4                                               No. 08-1473

guidelines range of 108 to 135 months’ imprisonment.
Taking into account the factors in 18 U.S.C. § 3553, the
court sentenced Martinez Lopez to the bottom of this
range.


                    II. DISCUSSION
  On appeal Martinez Lopez makes one argument: that the
district court erred when it declined to give him a two-
level reduction as a minor participant. We review for
clear error a district court’s factual determination whether
the defendant was a minor participant. See United States v.
Olivas-Ramirez, 487 F.3d 512, 516 (7th Cir. 2007). For the
reduction to apply, the defendant must prove by a prepon-
derance of the evidence that he was substantially less
culpable than the average participant in the criminal
enterprise. See U.S.S.G. § 3B1.2(b), cmt. 3(A); United States
v. Sorich, 523 F.3d 702, 717 (7th Cir. 2008).
  Martinez Lopez argues that he was nothing more than
a drug mule and, in this role, was substantially less
culpable than his uncle, Lazaro Martinez, who allegedly
organized the drug deals. Essentially, Martinez Lopez
argues that because he is less culpable than his uncle, the
minor-participant reduction should apply. Taken to its
logical conclusion, this would mean that in situations
where the offense involves only two people who are not
equally culpable, the less-culpable member would always
be entitled to a minor-participant reduction. This cannot
be. Rather, in situations where criminal activity involves
only two participants (and thus it is impossible to
ascertain the culpability of an “average” participant), the
No. 08-1473                                                5

key inquiry is the degree of the defendant’s culpability
relative to the other participant’s and the scope of the
criminal enterprise. See U.S.S.G. § 3B1.2, cmt. 3(A); United
States v. Oestreich, 286 F.3d 1026, 1031 (7th Cir. 2002).
  Here, even if Martinez Lopez’s uncle was indeed the
mastermind behind the drug sales, Martinez Lopez
failed to show that he was substantially less culpable than
his uncle. As the district court noted, Martinez Lopez
stored the drugs and engaged in several deliveries of
large quantities of cocaine—key activities to the success
of the enterprise given its scope. Therefore the district
court did not clearly err when it held that Martinez Lopez
was not a minor participant. See United States v. Gallardo,
497 F.3d 727, 741 (7th Cir. 2007) (holding that where
defendant handled large quantities of drugs and money,
executed drug sales, and played essential role in con-
spiracy, district court did not clearly err in denying minor-
participant reduction); United States v. Olivas-Ramirez,
487 F.3d 512, 515 (7th Cir. 2007) (upholding district
court’s finding that defendant who only pretended to be
methamphetamine cook for two days during the conspir-
acy was not a minor participant because his role was
essential); United States v. Mendoza, 457 F.3d 726, 728-30
(7th Cir. 2006) (upholding finding that defendant, a drug
courier, was not a minor participant because his close
relationship to the leader of the conspiracy was important
to the conspiracy’s success); United States v. Corral, 324
F.3d 866, 874 (7th Cir. 2003) (holding that district court
did not clearly err in finding that defendant who main-
tained stash house and was entrusted with one large
delivery of cocaine was not eligible for minor participant
reduction).
6                                          No. 08-1473

                 III. CONCLUSION
  Accordingly, we A FFIRM the judgment of the district
court.




                        9-19-08
