                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAY 18 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-3312
 v.                                          (D.C. No. 99-CR-10036-02-WEB)
                                                         (Kansas)
 TREVOR A. WELLS,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, 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 cause 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       This order and judgment is not binding precedent, except under the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, or 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.
      Trevor A. Wells was indicted for his participation in a scheme to defraud a

bank in Witchita, Kansas, with his girlfriend and co-defendant, Shauntell Polite.

Ms. Polite, an employee of NationsBank, used her position to transfer money out

of customer accounts and into accounts set up by Mr. Wells, Ms. Polite, and her

father, Clifton Polite. Mr. Wells pled guilty to one count of bank fraud. At his

sentencing hearing, the district court denied Mr. Wells’ request for a reduction

pursuant to U.S.S.G. § 3B1.2(b) based on his role in the offense as a minor

participant. He appeals and we affirm.

      The Sentencing Guidelines allow the district court to grant a two-level

reduction if it finds that the defendant’s role in the offense, while not minimal,

makes him substantially less culpable than most other participants. See. U.S.S.G.

§ 3B1.2(b) comment. (n.3 & backg’d). The burden of proof is on the defendant to

establish by a preponderance of the evidence that he is entitled to a reduction of

his offense level. See United States v. Santisteven, 39 F.3d 250, 253-54 (10th Cir.

1994). The Sentencing Commission recognized that “[t]he determination whether

to apply . . . subsection (b) . . . involves a determination that is heavily dependant

upon the facts of the particular case.” U.S.S.G. § 3B1.2, comment. (backg’d).

We review the district court’s decision for clear error because the court’s

determination that Mr. Wells was more than a minor participant is a finding of

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


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      Mr. Wells argued at his sentencing hearing and in his objections to the

Presentence Report that his only role in the offense consisted of spending the

money put into his account by Ms. Polite. He claims that because he had no part

in accessing the customer accounts or transferring the funds, he should have been

considered a minor participant. The district court disagreed, finding that Mr.

Wells’ offense involved discussing the fraud scheme with Ms. Polite, opening an

account, obtaining an ATM card, and repeatedly checking on and withdrawing

illegally transferred money out of the account. The court placed particular

emphasis on the fact that Mr. Wells alone spent the $17,000 he withdrew from the

account.

      “The commentary to section 3B1.2 makes it clear that we look to

culpability, not status or position . . . .” United States v. Donaldson, 915 F.2d

612, 615 (10th Cir., 1990); cf. Onheiber, 173 F.3d at 1258 (“[A] defendant is not

necessarily entitled to a sentence reduction under 3B1.2 solely because he can

show that he was a middleman.”). In this case, the offense was a two-stage

transaction: Ms. Polite transferred the funds into Mr. Wells’ account, and Mr.

Wells withdrew the funds. Ms. Polite may have had more knowledge of and

access to the bank’s customer account computer files, but the district court found

that Mr. Wells actively participated in the scheme and exclusively benefitted from

the proceeds. Mr. Wells has shown us nothing to persuade us the district court’s


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factual findings related to his culpability are clearly erroneous.

      AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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