                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 7 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-4216
 v.
                                                 (D.C. No. 99-CR-277-W)
                                                        (D. Utah)
 DEANE HOUSTON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Defendant-Appellant Deane Houston (“Houston”) was charged by

indictment with one count of possession of a firearm by a restricted person in

violation of 18 U.S.C. § 922(g) and one count of possession of a stolen firearm in

violation of 18 U.S.C. § 922 (j). Houston pled guilty to the charge of possession

of a firearm by a restricted person, and the second count was dismissed. Houston



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
was sentenced to 57-months imprisonment, based on an adjusted offense level of

19.

      The indictment and conviction in this case arose from the following

circumstances. Houston was involved in a traffic accident on May 24, 1999. Salt

Lake City police requested Houston’s driver’s license. Houston stated that she

did not have one in her possession but that her name was Dawn Cage. The police

ran a records check and found an outstanding arrest warrant for Dawn Cage. The

police arrested Houston (a.k.a Dawn Cage), and subsequently searched her

person. The police found a single .45caliber handgun bullet in her pocket. She

then told the police that she had a gun in her car. The police recovered a .45-

caliber handgun from under the seat of Houston’s car, with one round in it.

Police ran a records check on the gun and determined that it had been stolen from

a Salt Lake City pawn shop a few weeks earlier. Houston admitted to police that

she knew that the gun was stolen and that she had two prior convictions for drug

trafficking in the state of Ohio. Houston also stated that she was being paid $200

to act as a courier-delivering the gun from one party to another.

      On appeal, Houston only alleges one claim of error. She argues that the

district court erred in refusing to grant a reduction in her base offense level

pursuant to U.S.S.G. § 3B1.2. Section 3B1.2 allows a four-point reduction where




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the defendant was a minimal participant in the offense, and a two-point reduction

where the defendant was a minor participant in the offense.

      Houston objected to the PSR on the ground that it failed to recommend

such a reduction. The district court rejected Houston’s argument during the

sentencing hearing. Although the district court believed that Houston had been

asked to deliver the gun by someone else, the court explained that possession of a

firearm by a restricted person is a “status crime” and that the “point of the law . . .

is to keep someone who has been convicted of a felony from possessing a gun for

any reason.” (See Aplt. App. Vol. II, at 5.)

      We review a trial court’s determination that someone is not a minimal

participant as a finding of fact that is reviewed for clear error. See United States

v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999). In this case, however, the

district court concluded as a matter of law that Houston could not have been a

minor or minimal participant. We therefore review this interpretation of the

sentencing guidelines de novo. See United States v. Lacey, 86 F.3d 956, 962

(10th Cir.1996). We agree with the district court that Houston is not entitled to a

downward departure pursuant to § 3B1.2, although based on slightly different

reasoning.

      Houston points to a number of the application notes to § 3B1.2 in support

of her contention that she was merely a minor or minimal participant because she


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was acting as a courier. Houston particularly emphasizes application note (2),

which provides that a downward departure might be appropriate where the

defendant “was recruited as a courier for a single smuggling transaction involving

a small amount of drugs.”

      We acknowledge that the application notes direct the sentencing court to

consider the role that the defendant has played in the concerted activity. This

aspect of the application notes is inapposite in this case, however. In assessing

whether a defendant was a minor participant in the offense for which he or she

has been convicted, our inquiry necessarily must focus on the nature of that

offense. Although it may be true that working as a courier by delivering a stolen

handgun from one party to another involves concerted activity, and that Houston’s

role in the overall transaction was fairly limited, these facts have no bearing on

whether Houston could be considered to have played a minimal or minor role in

the offense to which Houston pled guilt: possession of a firearm by a restricted

person. Houston can be considered nothing other than the primary actor for that

offense because she, as a felon, is the restricted person to which the statute is

directed.

      We AFFIRM the sentence imposed by the district court.

                                        ENTERED FOR THE COURT

                                        David M. Ebel
                                        Circuit Judge

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