                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 31 2000
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                   No. 99-1239
          v.                                           (D. Colorado)
 JUAN GOMEZ-SOTELO,                              (D.C. No. 98-CR-387-WM)

                Defendant - Appellant.


                              ORDER AND JUDGMENT        *




Before KELLY , ANDERSON , and BRISCOE , Circuit Judges.




      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

               Juan Gomez-Sotelo pleaded guilty to one count of possession with

intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1),


      *
       This order and judgment is not binding precedent, except under the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.
(b)(1)(A)(viii). He appeals the sentence imposed, contending that the district

court erred by refusing to adjust his offense level downward pursuant to the

United States Sentencing Guidelines § 3B1.2 based on his allegedly minor or

minimal role. We affirm.



                                 BACKGROUND

      On September 30, 1998, a Colorado State Trooper stopped Mr. Gomez-

Sotelo for driving carelessly on Interstate 25 near Pueblo, Colorado. The trooper

noticed a strong deodorizer smell in the car and that Mr. Gomez-Sotelo, the

driver, appeared to be extremely nervous. Upon asking the driver and the female

passenger separately about the purpose of their trip from Los Angeles to Denver,

the trooper noticed discrepancies in their stories. After a check of defendant’s car

registration and license, Mr. Gomez-Sotelo gave written and verbal consent to the

trooper’s request to search the car. The search revealed about 2229 grams of

duct-taped methamphetamine hidden in the car’s air cleaner housing. Red liquid,

appearing to match a bottle of air freshener found in the trunk of the car, was

within the layers of duct tape. A receipt for five rolls of duct tape was later found

in the defendant’s possession.

      Upon notification at the Highway Patrol office that he and his girlfriend

were under arrest for possession of methamphetamine with intent to distribute,


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Mr. Gomez-Sotelo put his face in his hands and said his girlfriend did not know

anything about it. He also said that he purchased and registered the car in

Farmington, New Mexico, under the direction of an acquaintance named Julio.

Mr. Gomez-Sotelo said he gave the car to Julio. Upon the car’s return, Julio

directed Gomez-Sotelo to drive the car to a hotel in Denver where he would be

paged and then paid $8000 for the car.

      Pursuant to a plea agreement, Mr. Gomez-Sotelo pleaded guilty to

possession with intent to distribute methamphetamine. The government agreed to

eligibility for the “safety valve” provision of U.S.S.G. § 5C1.2 and a

recommendation for a sentence at the bottom of the applicable guideline range

after the safety valve reduction. The sentence followed this agreement.

      However, the court denied Gomez-Sotelo’s request for a reduction

adjustment for minor or minimal role-in-the-offense under U.S.S.G. § 3B1.2. The

district court sentenced Gomez-Sotelo to 87 months imprisonment (the low end of

the applicable range of 87 to 180 months) and 60 months of supervised release.

Mr. Gomez-Sotelo appeals the sentence imposed and reasserts the arguments the

district court rejected, contending that he should have received an adjustment for

a minimal or minor role.



                                  DISCUSSION


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       A defendant bears the burden of establishing, by a preponderance of the

evidence, entitlement to a reduction in base offense level under section 3B1.2.

See United States v. Onheiber , 173 F.3d 1254, 1258 (10th Cir. 1999). The district

court's determination that Gomez-Sotelo was more than a minor participant is a

finding of fact that we review for clear error.      See id.

       The district court based its refusal to apply the section 3B1.2 reduction

because (1) a receipt for duct tape was found on Mr. Gomez-Sotelo, (2) the

passenger described similar trips,   1
                                         and (3) a significant amount of drugs, worth

$8000 to $10,000, was involved.          See R. Vol. 2 at 10. The district court found no

facts to support Mr. Gomez-Sotelo’s request for a downward adjustment. Mr.

Gomez-Sotelo’s counsel declined an offer of a hearing on evidence to support the

reduction under section 3B1.2.

       Section 3B1.2 permits the district court to decrease the base offense level if

the defendant's role in the offense “makes him substantially less culpable than the

average participant.” U.S.S.G § 3B1.2, cmt. (1998). According to the guidelines,

the four-level decrease for minimal participation under 3B1.2(a) “will be used

infrequently” and should be reserved for “defendants who are plainly among the



       During the presentence investigation, the female passenger stated that she
       1

had made three trips with the defendant from Los Angeles to Farmington, New
Mexico. See R. Vol. 3 at 2. Each time they stayed about three days in a motel.
She said that the defendant did not want anyone to know of and never talked
about his business.

                                               -4-
least culpable of those involved in the conduct of a group.”     Id. Examples include

individuals recruited as couriers for a single transaction involving a small

quantity of drugs.   See id. The two-level decrease for minor participation applies

to individuals who are “less culpable than most other participants, but whose role

could not be described as minimal.”       Id. However, “minor participant

classification is routinely denied” to drug couriers.    United States v. Caruth , 930

F.2d 811, 815 (10th Cir. 1991). The Guidelines permit a district court to compare

the defendant’s conduct with the average conduct in that type of crime.      See id.

       The evidence indicates that Mr. Gomez-Sotelo was not a one-time courier,

that he was entrusted with a large amount of methamphetamine, and that he was

aware of the concealed packages. These facts support the district court's

conclusion that Gomez-Sotelo was more than a minor participant, and therefore

was not entitled to a reduction under section 3B1.2. The district court's findings

are adequately supported by the record and are not clearly erroneous.

AFFIRMED.

                                                   ENTERED FOR THE COURT


                                                   Stephen H. Anderson
                                                   Circuit Judge




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