                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                         August 16, 2006
                                     TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AM ERICA,
           Plaintiff-Appellee,                             No. 05-3464
 v.                                              (D.C. No. 04-CR-40159-RDR)
 EM IG DIO HERNANDEZ BUSTOS,                                (D . Kan.)
           Defendant-Appellant.


                                 OR D ER AND JUDGM ENT *



Before KELLY, M cK AY, and L UCERO, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without oral

argument.

       Appellant pleaded guilty to one count of possession with intent to distribute

4.55 kilograms of a mixture containing methamphetamine, a violation of 21

U.S.C. § 841(a)(1). His conviction arose from a traffic stop on I-70 in Kansas



       *
       This order and judgment is not binding precedent, except under the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.
where packages of methamphetamine were found in a false compartment in the

minivan he was driving.

      Appellant argues that he is entitled to a four-level reduction for minimal

role in the offense, under U.S.S.G. § 3B1.2. The district court refused to apply

any reduction for a mitigating role at his sentencing hearing and memorialized

this ruling in a M emorandum and Order. M emorandum and Order (D. Kan.

Dec. 2, 2005).

      “W e review sentences imposed by the district court for reasonableness.”

United States v. Galarza-Payan, 441 F.3d 885, 887 (10th Cir. 2006). The trial

court’s determination of a defendant’s role in the offense is treated as a factual

finding and is therefore subject to review under the “clearly erroneous” standard.

United States v. Santistevan, 39 F.3d 250, 253 (10th Cir. 1994) (quotation

omitted). The district court’s finding that Appellant “was actively involved in the

transportation of the controlled substances” is supported by the evidence.

M emorandum and Order, 3. He was not a mere courier, but rather someone who

sought to obtain and transport the drugs across the country. To accomplish this,

he purchased a van and stored the drugs in a false compartment. W e agree that

“[t]hese activities show far more involvement than merely driving the drugs to a

location” and do not support a finding of minimal involvement. Id.

      Appellant also argues that his sentence was not reasonable under 18 U.S.C.

§ 3553(a). Specifically, he argues that, because his co-defendant received a 48-

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month sentence, Appellant’s sentence of 100 months was unreasonable and

disparate. First, the district court’s sentence of Appellant was thirty-five months

below the Guidelines range. Second, the district court acknowledged and

carefully considered the disparity between the sentences of Appellant and his co-

defendant: “[T]he court has considered the need to avoid unwarranted sentencing

disparities among defendants who have been found guilty of similar conduct and

the need to provide restitution to any victims of the offense.” Id. at 5. W e

conclude that the district court’s sentence of 100 months reflects consideration for

disparity.

      W e have carefully reviewed the briefs of Appellant and Appellee, the

district court’s disposition, and the record on appeal, and for substantially the

sam e reasons as the district court stated in its order of December 2, 2005, we

A FFIR M Appellant’s sentence. W e also deny Appellant’s renewed motion to

produce the presentence report of his co-defendant for the reasons stated in the

district court’s order of January 18, 2006, which was w ritten in response to

Appellant’s first motion for this request.

                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge




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