                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-2681
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             * Appeal from the United States
                                          * District Court for the District
      v.                                  * of Nebraska.
                                          *
Ezequiel Jacinto,                         *      [UNPUBLISHED]
                                          *
                    Appellant.            *
                                     ___________

                                Submitted: February 14, 2006
                                   Filed: February 22, 2006
                                    ___________

Before WOLLMAN, FAGG, and ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       Police officers stopped a car driven by Ezequiel Jacinto for a traffic violation.
After officers arrested Jacinto for driving with a suspended license, they conducted
an inventory search and found a loaded sawed-off shotgun on the floorboard under a
coat, as well as a digital scale and three ounces of marijuana. Jacinto later pleaded
guilty to possession of an unregistered shotgun having barrel of less than eighteen
inches in length. At the sentencing hearing, Jacinto sought a minor role reduction
under U.S.S.G. § 3B1.2, proffering his own testimony that when he stopped to pick
up his passenger, the passenger had the gun beneath his coat and showed it to Jacinto
when he entered the vehicle. The presentence report shows Jacinto made the same
statement to police at the time of his arrest, and presents no alternative version of
events. Although the Government proffered no facts at the hearing, the Government
argued neither the presentence report nor the prosecution had referred to anyone else
possessing the gun, and no other individual had been charged with the offense of
unregistered gun possession. The district court* observed that Jacinto’s offense
required just one person for its commission. The court then denied the reduction
“based on the nature of the offense, regardless of who initially may have placed the
weapon in the car and in [Jacinto’s] possession.” The court sentenced Jacinto at the
bottom of the advisory Guidelines range to thirty-seven months in prison and three
years of supervised release.

      On appeal, Jacinto first contends the district court erroneously concluded he
was ineligible for a mitigating role reduction under U.S.S.G. § 3B1.2 as a matter of
law. Section 3B1.2(b) provides that if the defendant was a minor participant in any
criminal activity, the district court may decrease the offense level by two. The
commentary notes indicate, however, that § 3B1.2 does not apply

      unless more than one participant was involved in the offense. . . .
      Accordingly, an adjustment under this guideline may not apply to a
      defendant who is the only defendant convicted of an offense unless that
      offense involved other participants in addition to the defendant and the
      defendant otherwise qualifies for such an adjustment.

“A ‘participant’ is a person who is criminally responsible for the commission of the
offense, but need not have been convicted.” U.S.S.G. §§ 3B1.2 n.1, 3B1.1 n.1. We
have held that a defendant convicted of a “sole participant” offense may be entitled
to the § 3B1.2 reduction if the defendant shows (1) the relevant conduct for which he
is accountable involved more than one participant, and (2) the defendant’s culpability
for the conduct was relatively minor compared to the conduct of the other participants.


      *
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

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United States v. Snoddy, 139 F.3d 1224, 1231 (8th Cir. 1998). The defendant has the
burden to show entitlement to the reduction. United States v. Salvador, 426 F.3d 989,
993 (8th Cir. 2005). Although we review a district court’s interpretation and
construction of the Guidelines de novo, we review a district court’s decision that a
defendant does not qualify for a § 3B1.2 reduction for clear error. United States v.
Monk, 312 F.3d 389, 390 (8th Cir. 2002).

        The district court did not commit clear error in denying Jacinto the reduction.
First, Jacinto failed to show the relevant conduct for which he is accountable involved
multiple actors engaged in concerted criminal activity. United States v. Johnson, 358
F.3d 1016, 1018 (8th Cir. 2004) (explaining first prong of Snoddy test). The PSR
indicated Jacinto was the only participant in the offense. Jacinto’s passenger never
admitted ownership of the shotgun, and he was not charged with its possession in state
or federal court. The shotgun was not found near the passenger, and the passenger’s
mere presence in the car from which the gun was recovered does not establish the
passenger’s possession. United States v. Payne, 377 F.3d 811, 815 (8th Cir. 2004).
Further, the facts alleged by Jacinto do not support a finding that he and his passenger
were engaged in joint criminal activity. Instead, Jacinto maintained he simply
encountered his passenger on the street and offered to give him a ride.

      Jacinto also argues his post-Booker sentence is unreasonable. See United States
v. Booker, 543 U.S. 220 (2005). Jacinto claims the district court ignored unusual
mitigating circumstances relating to Jacinto’s possession, gave undue weight to the
sentencing guidelines, and did not properly balance the sentencing factors in 18
U.S.C. § 3553(a). Because the district court properly declined to apply § 3B1.2 to
Jacinto, his Guidelines sentencing range is correct. See United States v. Hadash, 408
F.3d 1080, 1082 (8th Cir. 2005) (explaining our review of a sentence’s
reasonableness).     The district court sentenced Jacinto within the range after
considering the sentencing factors set forth in § 3553(a). Accordingly, Jacinto’s



                                          -3-
sentence was reasonable. See United States v. Vasquez, No. 05-1644, 2006 WL
47514, at *4 (8th Cir. Jan. 11, 2006).

     We thus affirm Jacinto’s sentence.
                     ______________________________




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