                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2148
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota
Jorge Luis Rumbo-Rosendiz,               *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: December 11, 2002

                                   Filed: August 20, 2003 (corrected 8/22/03)
                                    ___________

Before McMILLIAN, JOHN R. GIBSON and BYE, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.

       Jorge Luis Rumbo-Rosendiz appeals from a final judgment entered in the
District Court1 for the District of Minnesota, following his plea of guilty, pursuant to
a written plea agreement, to conspiracy to distribute and possess with intent to
distribute over 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 846,
841(b)(1)(A). The district court sentenced him to 121 months imprisonment, 4 years


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
supervised release, and a special assessment of $100.00. For reversal, appellant
argues that the district court erred in finding that he was an average participant and
therefore not entitled to a mitigating role reduction in his offense level as either a
minimal or minor participant pursuant to U.S.S.G. § 3B1.2. For the reasons discussed
below, we affirm the sentence of the district court.

      The district court had jurisdiction over this criminal case pursuant to 18 U.S.C.
§ 3231. We have jurisdiction over this sentencing appeal filed by the defendant
pursuant to 18 U.S.C. § 3742(a). Appellant filed a timely notice of appeal pursuant
to Fed. R. App. P. 4(b).

       On June 12, 2001, narcotics investigators were watching an apartment building
in St. Paul, Minnesota. They had information from a confidential informant that a
large quantity of methamphetamine was stored in the apartment building and that two
Hispanic males would arrive in a Honda to pick it up. The investigators saw two
Hispanic males arrive in a Honda and park behind the apartment building. Alfredo
Valles Manzanares was the driver; appellant was the passenger. Both men entered
the apartment building. A short time later, appellant left the apartment building and
walked down an alley. He was seen carrying a brown cardboard box. He was also
observed picking a plastic bag off the ground. He carried the cardboard box and the
plastic bag to a white Volkswagen parked near the Honda. He opened the trunk of
the Volkswagen and placed the cardboard box inside. He placed the plastic bag over
his hand and transferred several items to that cardboard box from another larger,
cardboard box in the trunk of the Volkswagen. He then removed the first cardboard
box and placed it in the trunk of the Honda. He put the plastic bag in the back seat
of the Honda. He closed both trunks and re-entered the apartment building.

       A short time later, appellant and Manzanares left the apartment building and
got into the Honda. Manzanares drove away; appellant was the passenger. The
investigators stopped the Honda, and appellant and Manzanares consented to a search

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of the vehicle. Inside the trunk the investigators found seven packages wrapped in
duct tape. The packages contained 3,095 grams of methamphetamine. The
investigators obtained a search warrant for the Volkswagen and found inside the
trunk of that vehicle seven additional packages containing a total of 3,022 grams of
methamphetamine. In addition, the investigators seized $2,567 in cash from appellant
and $152 from Manzanares.

      In July 2001 a federal grand jury charged appellant and Manzanares with
conspiracy to distribute and possess with intent to distribute more than 500 grams of
methamphetamine and two counts of possession with intent to distribute
methamphetamine. While the case was pending, INS officials mistakenly deported
Manzanares to Mexico.

        In January 2002 appellant entered a plea of guilty, pursuant to a written plea
agreement, to the conspiracy count. The plea agreement provided that the
applicability of a reduction based on appellant’s role in the offense would be
determined by the district court. According to the presentence report (PSR),
appellant’s base offense level was 36; 2 levels were deducted under the safety valve
provision, 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.2, and 2 levels were deducted for
acceptance of responsibility, U.S.S.G. § 3E1.1, for a total offense level of 32. The
PSR found that appellant was an average participant and therefore not entitled to a
reduction for his role in the offense. Under criminal history category I, the applicable
sentencing guideline range was 121-151 months. Appellant objected to the average
role in the offense finding. With a four-level reduction as a minimal participant,
appellant’s total offense level would have been 28, and, at criminal history category
I, the applicable guideline sentencing range would have been 78-97 months. With a
two-level reduction as a minor participant, appellant’s total offense level would have
been 30, and, at criminal history category I, the applicable guideline sentencing range
would have been 97-121 months.



                                          -3-
       Following a sentencing hearing, the district court found that, under the totality
of the circumstances, appellant was an average participant and therefore should not
receive a mitigating role reduction. The district court acknowledged that
Manzanares’s absence made the issue of their respective roles in the conspiracy more
difficult to resolve, but noted that, unlike Manzanares, appellant had been found with
a substantial amount of cash on his person and that this fact suggested that each
defendant should be considered an average participant in the offense and not a
minimal or minor participant. The district court sentenced appellant to 121 months
imprisonment, 4 years supervised release and a special assessment of $100. This
appeal followed.

       For reversal, appellant argues that the district court erred in denying his request
for a mitigating role reduction pursuant to U.S.S.G. § 3B1.2. He argues that he was
a minimal participant because he was among the least culpable of those involved in
the conspiracy and because he did not know or understand the scope and structure of
the conspiracy or the activities of others involved in the conspiracy. He argues that
his role in the conspiracy was limited to accompanying Manzanares to the pick up
location and to transferring the methamphetamine from one vehicle to the other.

       We review the district court’s determination of the defendant’s mitigating role
in the offense under the clearly erroneous standard of review. E.g., United States v.
Gutierrez-Manzanarez, 323 F.3d 613, 615 (8th Cir. 2003); Ponce v. United States,
311 F.3d 911, 913 (8th Cir. 2002); United States v. Lopez-Arce, 267 F.3d 775, 784
(8th Cir. 2001). The defendant has the burden to prove that the reduction is
warranted. Lopez-Arce, 267 F.3d at 784. U.S.S.G. § 3B1.2 provides that a
defendant’s offense level should be reduced by four levels if the defendant was a
“minimal participant,” by two levels if a “minor participant,” and by three levels for
those in between.




                                           -4-
      The determination whether to apply [the minimal participant] or [the
      minor participant], or an intermediate adjustment, involves a
      determination that is heavily dependent upon the facts of the particular
      case. As with any other factual issue, the [sentencing] court, in
      weighing the totality of the circumstances, is not required to find, based
      solely on the defendant’s bare assertion, that such a role adjustment is
      warranted.

Id. cmt. n.3(C). A minimal participant is one who

      plays a minimal role in concerted activity. It is intended to cover
      defendants who are plainly among the least culpable of those involved
      in the conduct of a group. Under this provision, the defendant’s lack of
      knowledge or understanding of the scope and structure of the enterprise
      and of the activities of others is indicative of a role as minimal
      participant. It is intended that the downward adjustment for a minimal
      participant will be used infrequently.

Id. cmt. n.4.

      For example, a defendant who is convicted of a drug trafficking offense,
      whose role in that offense was limited to transporting or storing drugs
      and who is accountable under § 1B1.3 only for the quantity of drugs the
      defendant personally transported or stored is not precluded from
      consideration for an adjustment under this guideline.

Id. cmt. n.3(A). A minor participant is one who is “less culpable than most other
participants, but whose role could not be described as minimal.” Id. cmt. n.5.

       We hold that the district court’s finding that appellant was an average
participant and therefore not entitled to a mitigating role reduction as either a minimal
or minor participant was not clearly erroneous. The facts suggested that appellant’s
role in the conspiracy was neither “plainly among the least culpable” (as a minimal
participant) nor “substantially less culpable than the average participant” (as a minor

                                           -5-
participant). Appellant was found in possession of much more cash than Manzanares,
a fact which suggested that he was not substantially less culpable than Manzanares.
Appellant was observed taking precautions to conceal his identity when he transferred
several kilograms of methamphetamine from one vehicle to another, facts which
suggested that he knew or understood both the illegal nature and the scope of the
conspiracy.

      Accordingly, we affirm the sentence of the district court.

      A true copy.

             Attest:

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




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