                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                           AUG 18 2003
                      UNITED STATES COURT OF APPEALS
                                                                       PATRICK FISHER
                                                                                Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                          No. 02-3204
 v.
                                                (D.C. No. 00-CR-40024-17-SAC)
                                                          (D. Kansas)
 CANDI JANE SISK,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


      Candi Jane Sisk pled guilty to conspiring to distribute methamphetamine in

violation of 21 U.S.C. § 846. At sentencing, the district court relied on the

Presentence Investigation Report (“PSIR”) in decreasing Sisk’s offense level by

two based on her role as a minor participant, pursuant to U.S.S.G. § 3B1.2(b). 1

      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
      1
           U.S.S.G. § 3B1.2 provides:
               Based on the defendant’s role in the offense, decrease the offense
                                                                        (continued...)
Notwithstanding her failure to object below, Sisk challenges on appeal the district

court’s determination that she was a minor participant in the drug conspiracy

eligible for a two-level reduction, rather than a minimal participant eligible for a

four-level reduction. Exercising jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we affirm.

      In general, we review for clear error a district court’s factual determination

as to whether a defendant was a minor or a minimal participant in a drug

conspiracy, and we give due deference to the court’s application of the sentencing

guidelines to the facts. United States v. Garcia, 182 F.3d 1165, 1175 (10th Cir.

1999). Because Sisk failed to object to the PSIR’s characterization of her role in

the offense as minor, however, she has waived the issue on appeal unless the

district court committed plain error. See United States v. Ivy, 83 F.3d 1266, 1297

(10th Cir. 1996) (“We have repeatedly held that if a defendant fails to object to

[her] presentence report, [she] waives [her] right to challenge the district court’s

reliance on it, unless the district court’s decision to do so amounts to plain

error.”). It is well-established that, to constitute plain error, a district court’s



      1
          (...continued)
                level as follows:
                (a) If the defendant was a minimal participant in any criminal
                activity, decrease by 4 levels.
                (b) If the defendant was a minor participant in any criminal activity,
                decrease by 2 levels.

                                           -2-
decision must be “particularly egregious, as well as obvious and substantial.” Id.

(quotation omitted).

      Based on our review of the undisputed facts of the instant case, as set forth

in the PSIR, it is far from obvious whether Sisk was a minimal versus a minor

participant in the conspiracy. As described in the PSIR, Sisk was a “runner” in

the drug conspiracy, she had obtained the necessary paraphernalia for the

manufacture of methamphetamine, and she was aware of the conspiracy. (13 R. at

17 ¶ 59.) Even if the district court erred in concluding that Sisk was a minor,

rather than a minimal, participant, its error was not “particularly egregious,

obvious, or substantial,” Ivy, 83 F.3d at 1297, so as to constitute plain error.

Accordingly, we AFFIRM.

      The mandate shall issue forthwith.



                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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