               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0366n.06

                                          No. 13-3904
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                        May 15, 2014
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE SOUTHERN DISTRICT OF
IVAN NUNEZ-LIZZARRAGA,                                )   OHIO
                                                      )
       Defendant-Appellant.                           )


       BEFORE: BOGGS and CLAY, Circuit Judges; COHN, District Judge.


       PER CURIAM. Ivan Nunez-Lizzarraga, a federal prisoner, appeals through counsel the

sentence imposed following his guilty plea to a charge of possessing with intent to distribute

more than 100 grams of heroin.

       The statutory mandatory minimum sentence for this offense is five years.               The

presentence report calculated Nunez-Lizzarraga’s sentencing guideline range at 87 to 108

months. The district court varied downward and sentenced Nunez-Lizzarraga to 75 months. The

district court rejected Nunez-Lizzarraga’s argument that he was entitled to a two-level reduction

in the offense level for his minor role, pursuant to USSG § 3B1.2(b), which would have changed

the guideline range to 70 to 87 months. Nunez-Lizzarraga reasserts this argument on appeal.

       A sentence may be procedurally unreasonable where the district court fails to properly

calculate the guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). We review a

       
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 13-3904
United States v. Nunez-Lizzarraga

factual determination relevant to the denial of a minor role reduction for clear error. United

States v. Groenendal, 557 F.3d 419, 422-23 (6th Cir. 2009); United States v. Latouf, 132 F.3d

320, 332 (6th Cir. 1997). The defendant must prove by a preponderance of the evidence that he

was a minor participant. United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001).

       In this case, Nunez-Lizzarraga maintained that he was only delivering the 822 grams of

heroin found in his motel room at the direction of a man in Arizona, who had not yet contacted

him about where the drugs were to be delivered. However, the government presented evidence

that law enforcement officials observed Nunez-Lizzarraga engaged in suspicious activity that

resembled a drug transaction in the parking lot of a casino. Also, a man who visited Nunez-

Lizzarraga’s motel room, Joaquin Reyes, was followed and eventually stopped while driving

from the motel. Reyes admitted to selling an ounce of heroin at one of the houses where he had

been observed making a brief visit after leaving the motel.       The occupants of the house

corroborated that story. Reyes stated that he had been hired by Nunez-Lizzarraga to help drive

from Arizona and sell the heroin, and that Nunez-Lizzarraga had previously been in the drug

distribution business in Columbus, Ohio. While the district court did not give much weight to

Reyes’ statement, it did find that Nunez-Lizzarraga’s observed behavior and the sale of heroin by

Reyes indicated that there was more taking place in this case than Nunez-Lizzarraga’s statement

that he was a mere courier. Therefore, the court found that Nunez-Lizzarraga did not bear his

burden of proving by a preponderance of the evidence that he was only a minor participant.

Because the record shows no clear error in the district court’s determination that Nunez-

Lizzarraga was not eligible for a minor-role adjustment, we AFFIRM the district court’s

judgment.




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