                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      January 31, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                  No. 06-4148 and 06-4163
 v.                                             (D.C. No. 2:05-CR-910-PGC)
                                                          (D. Utah)
 JO SE H ER NA N D EZ-R OM A N ,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **


      In these consolidated appeals, Defendant-Appellant Jose Hernandez-Roman

argues that the district court erred in concluding that he was not entitled to a two-

point reduction in his offense level because he was a minor participant in the

crime for which he was convicted. See U.S.S.G. § 3B1.2. W e conclude that the

district court’s factual findings were not clearly erroneous, and we affirm the



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
sentence. W e also grant M r. Hernandez’s motion to dismiss appeal No. 06-4163

because we deem the original appeal (No. 06-4148) to be an appeal from the

district court’s original judgment of June 8, 2006, and its amended judgment of

June 22, 2006.



                                    Background

      On November 4, 2005, a police officer in Blanding, Utah, initiated a traffic

stop of a 2001 Chevrolet M alibu for an improper lane change. The driver of the

M alibu was a minor, and M r. Hernandez was the passenger. After a brief

discussion with both occupants, the officer told them that they were free to leave.

Subsequently, the officer asked for and received the driver’s consent to search the

M alibu. The search revealed that approximately six pounds of methamphetamine

and two pounds of cocaine w ere hidden behind the vehicle’s front quarter panels.

      The driver and M r. Hernandez were indicted on December 14, 2005, and

charged with one count of possession of 500 grams or more of a mixture

containing methamphetamine with intent to distribute (Count I) and one count of

possession of 500 grams or more of a mixture containing cocaine with intent to

distribute (Count II), both in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

The indictment also sought the criminal forfeiture of the property used in the

comm ission of the crime (the M alibu) pursuant to 21 U.S.C. § 853. On M arch 28,

2006, M r. Hernandez entered a plea of guilty to Count I. The government moved

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to dismiss Count II, and the court granted this motion.

      In preparation for sentencing, the Probation Office prepared a Presentence

Investigation Report (PSR). The PSR determined that the base offense level for a

violation of 21 U.S.C. § 841(a)(1) was 38 but that M r. Hernandez was entitled to

a three-level reduction, pursuant to U.S.S.G. § 3E1.1, because he had accepted

responsibility for the crime. W ith a total offense level of 35 and a criminal

history category of I (reflecting zero criminal history points), the guideline range

for M r. Hernandez was 168 to 210 months in prison followed by 60 months of

supervised release.

      In his objections to the PSR, M r. Hernandez noted that he qualified for an

additional two-level “safety valve” reduction. See U.S.S.G. § 5C1.2. He also

asserted that he was entitled to a reduction of two or four levels as either a minor

or minimal participant in the offense. See id. § 3B1.2. M r. Hernandez reasoned

that he was only a passenger in the vehicle, and he had been “engaged by [the

driver] to travel with [the driver] in the vehicle containing the controlled

substances.” R. Doc. 42 at 2. The driver made the arrangements to pick up the

car, coordinated the travel route, and “communicated via cellular telephone with

those organizing the delivery.” Id. M r. Hernandez, on the other hand, “did not

participate in those conversations” and he “did not know the travel route and

further did not know where, in the vehicle, the controlled substances were

located; nor did he know the quantities involved.” Id.

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      After acknowledging that “I’m on the fence on this one,” R. Doc. 66 at 5:7-

8, the district court decided that M r. Hernandez did not qualify for a reduction for

his role in the offense. The court reasoned that M r. Hernandez was not a minor

participant because:

      This is six pounds of methamphetamine which would have a
      significant street value and one of the larger quantities that I have
      seen. . . . I think [the government] is right. I don’t think you get that
      kind of a load without some sort of trust from the people who are
      involved in that. And I think also the fact that there was a juvenile
      there, I don’t think the juvenile would have been the main player on
      this. It is hard for me to see how an older person would be taking
      orders from someone under the age of 18 even though he happened to
      be driving at the time they were pulled over and going back to
      Nebraska, the place where the defendant previously resided.

Id. at 9:25-10:11. However, the court determined that M r. Hernandez was entitled

to a two-level safety valve reduction, leaving him with a total offense level of 33

and a guideline range of 135 to 168 months’ imprisonment. The court sentenced

M r. Hernandez to 135 months in prison followed by 60 months of supervised

release, and it ordered the M alibu forfeited.



                                      Discussion

      In this appeal, we are called upon to review the district court’s application

of § 3B1.2 of the United States Sentencing Guidelines. Our jurisdiction to review

a sentence imposed by the district court arises under 18 U.S.C. § 3742(a), and

“[w]e review for clear error the district court’s refusal to award a defendant minor



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or minimal participant status.” United States v. Bowen, 437 F.3d 1009, 1018

(10th Cir. 2006). Section 3B1.2 is intended to provide “a range of adjustments

for a defendant who plays a part in committing the offense that makes him

substantially less culpable than the average participant.” U .S.S.G. § 3B1.2 cmt.

n.3(A ). The defendant’s culpability “involves a determination that is heavily

dependent upon the facts of the particular case.” Id. § 3B1.2 cmt. n.3(C). Thus,

the sentencing court must weigh “the totality of the circumstances, [and] is not

required to find, based solely on the defendant’s bare assertion, that such a role

adjustment is warranted.” Id.

      In his admirably concise argument, M r. Hernandez asserts that the district

court lacked an evidentiary basis for the finding that he was not a minor player in

the offense. The only evidence before the court, M r. Hernandez contends, was his

testimony that this was his first time transporting drugs and that the driver had

made the arrangements and recruited him for assistance. He argues that the

district court clearly erred in disregarding this evidence.

      W hile M r. Hernandez is correct that his testimony was the only direct

evidence of his role, his argument ignores the circumstantial evidence that

ultimately provided the foundation for the court’s decision. The court first looked

to the drug quantity, reasoning that the drugs in the car had such a high street

value that it was very unlikely that they would be entrusted to a novice mule. The

court then considered the relative ages of M r. Hernandez and the driver,

                                         -5-
disbelieving that the younger driver w ould be giving orders to the older M r.

Hernandez. Finally, the court noted that M r. Hernandez had lived in Nebraska

and likely still had contacts there, making his story that he did not know where

the car was going or who would pick up the drugs not credible.

      As the finder of fact, the court was permitted to draw these reasonable

inferences from the evidence before it. The court was also free to discredit the

testimony given by M r. Hernandez. As here, when there are two permissible

views of the evidence, the trier of fact’s adoption of one of those views cannot be

clearly erroneous. The court’s factual finding that M r. Hernandez was not a

minor participant is supported by the evidence and must be upheld.

      In appeal No. 06-4148, the sentence imposed by the district court is

AFFIRM ED. M r. Hernandez’s motion to dismiss case No. 06-4163 is GR AN TED

and that appeal is D ISM ISSED .

                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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