                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 02-4004
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Teodoro Mercado, also known as         *
Robert Balbuena,                       *
                                       *
           Appellant.                  *
      ___________
                                           Appeals from the United States
      No. 02-4006                          District Court for the
      ___________                          District of Nebraska.

United States of America,              *     [UNPUBLISHED]
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Daniel Ramos Espinoza,                 *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: May 13, 2003

                                 Filed: May 22, 2003
                                  ___________
Before WOLLMAN and BEAM, Circuit Judges, and NANGLE,1 District Judge.
                          ___________

PER CURIAM.

      Teodoro Mercado ("Mercado") and Daniel Ramos Espinoza ("Espinoza") were
charged in a one-count indictment with possession with intent to distribute more than
500 grams of cocaine and 100 kilograms of marijuana, in violation of 21 U.S.C. §
841(a)(1) and (b)(1). Mercado pleaded guilty, and the district court2 sentenced him
to 97 months' imprisonment and five years of supervised release. After a jury trial,
Espinoza was sentenced to 135 months' imprisonment and five years of supervised
release. Espinoza appeals his conviction and both Mercado and Espinoza appeal their
sentences.

       Mercado and Espinoza were in a U-Haul truck on Interstate 80 in Nebraska
when a Nebraska State Patrol officer stopped the truck for following another car too
closely. After receiving consent from both Mercado and Espinoza to search the truck,
the officer found 3.36 kilograms of cocaine and 191.4 kilograms of marijuana hidden
in the storage compartment. Mercado pleaded guilty to possession of cocaine and
marijuana with intent to distribute. Espinoza pleaded not guilty and went to trial.

      Mercado argues that the district court erred in failing to decrease his offense
level by three levels for acceptance of responsibility, pursuant to United States
Sentencing Guidelines Manual § 3E1.1 ("U.S.S.G."). We review a denial of an
acceptance of responsibility reduction for clear error. United States v. Ervasti, 201


      1
       The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
      2
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the Report and Recommendation of United States Magistrate
Judge David L. Piester.

                                        -2-
F.3d 1029, 1043 (8th Cir. 2000). "The sentencing judge is in a unique position to
evaluate a defendant's acceptance of responsibility. For this reason, the determination
of the sentencing judge is entitled to great deference on review." U.S.S.G. § 3E1.1,
cmt. n.5. After carefully reviewing the record, we find that the district court did not
clearly err when it refused to grant Mercado an acceptance of responsibility reduction.
Mercado is not entitled to this reduction as a matter of right just because he pleaded
guilty, U.S.S.G. § 3E1.1, cmt. n.3, and questions remained about the truthfulness of
Mercado's testimony at Espinoza's trial.3

       Espinoza claims that the evidence presented at trial was insufficient to show
that he knowingly and intentionally possessed marijuana and cocaine with the intent
to distribute and that the district court erred in denying his request for a four-level
reduction, because he was a minor participant in the criminal activity, under U.S.S.G.
§ 3B1.2. To succeed on his sufficiency of the evidence claim, Espinoza has a strict
standard to pass – he must show that no reasonable trier of fact could have found him
guilty beyond a reasonable doubt, based on the evidence adduced at trial. United
States v. Francis, No. 02-2006, slip op. at 6 (8th Cir. Apr. 28, 2003). In determining
the sufficiency of the evidence, we review the evidence in the light most favorable
to the government. Id. We hold that Espinoza has failed to meet the standard set
forth in Francis. The evidence supports the jury's finding that Espinoza knowingly
and intentionally possessed the drugs.

       Espinoza's minor participant argument fails as well. We review the district
court's refusal to grant a minor-participant reduction for clear error. United States v.
Correa, 167 F.3d 414, 416 (8th Cir. 1999). The district court did not clearly err in
finding Espinoza as culpable as Mercado.

      Accordingly, we affirm.

      3
       "[A] defendant who falsely denies, or frivolously contests, relevant conduct
that the court determines to be true has acted in a manner inconsistent with
acceptance of responsibility." U.S.S.G. § 3E1.1, cmt. n.1(a).

                                          -3-
A true copy.

               Attest:

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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