                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-2022
                                  ___________

United States of America,            *
                                     *
            Appellee,                * Appeal from the United States
                                     * District Court for the
      v.                             * District of Minnesota.
                                     *
Jose Enrique Rodriguez-Medrano,      * [UNPUBLISHED]
                                     *
            Appellant.               *
                                ___________

                             Submitted: December 13, 2004
                                Filed: December 30, 2004
                                 ___________

Before BYE, HANSEN, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       Jose E. Rodriguez-Medrano pleaded guilty to one count of conspiracy to
distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) & 846. The district court1 sentenced Rodriguez-Medrano to
eighty-seven months imprisonment, a sentence which reflected a two-level upward
enhancement, pursuant to U.S.S.G. § 3B1.4, for use of a minor in the offense. On
appeal, Rodriguez-Medrano contends the district court erred in imposing the upward


      1
      The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
enhancement because his conduct does not meet the definition of “use” for purposes
of § 3B1.4.

                                           I

       After earlier spotting a man suspiciously watching him from a Super 8 Motel,
a deputy county sheriff obtained a drug-sniffing canine to conduct an exterior drug
sniff of vehicles located in the motel parking lot. The canine detected the odor of
illegal drugs in two vans. The deputy sheriff then applied for and obtained search
warrants for the vans. Upon searching the vans, the sheriff’s department found
approximately 820 pounds of marijuana in a large plastic tote and five large duffel
bags. The deputies arrested the three adults in the motel rooms associated with the
vans. The three adults were traveling with their five children ranging in age from
four to seven years old.

      Two of the adults (Saenz and Cortez) cooperated with authorities by giving the
name of Rodriguez-Medrano as the name of the leader or organizer of the drug ring.
On several occasions, Rodriguez-Medrano paid them to smuggle a vehicle loaded
with drugs from Mexico to various locations in the United States. Rodriguez-
Medrano suggested they put groceries in the trunks of the vehicles and bring their
children along to make them look more like a family, less suspect.

       At Rodriguez-Medrano’s sentencing, the district court applied a two-level
enhancement for use of a minor under § 3B1.4. In support of the enhancement, the
district court made the following finding of fact:

      My finding of fact is that the defendant made a request of the
      codefendants to bring their children. It was ultimately the decision of
      the codefendants, meaning Saenz and Cortez, to bring the kids. But
      under this guideline that’s sufficient for the enhancement. . . I don’t find
      that he – that it was a condition precedent to Cortez and Saenz’s

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      involvment. He didn’t make it contingent on that. He didn’t put
      pressure on them to bring the kids, but he suggested it might help devoid
      – avoid detection.

Because the district court found he merely requested the codefendants bring their
children and it was ultimately the decision of each codefendant to bring their children,
Rodriguez-Medrano claims the application of the two-level use of minor
enhancement was erroneous. We disagree.

                                           II

       “A district court’s factual determination that leads to the application of a
sentence enhancement is reviewed for clear error.” United States v. Fladten, 230 F.3d
1083, 1086 (8th Cir. 2000). We review de novo the applicability of a guideline to the
facts. United States v. Guy, 349 F.3d 655, 658 (8th Cir. 2003).

       Section 3B1.4 provides for a two-level enhancement to a defendant’s guideline
“if the defendant used or attempted to use a person less than eighteen years of age to
commit the offense or assist in avoiding detection of, or apprehension for, the
offense.” U.S.S.G. § 3B1.4. The phrase “‘used or attempted to use’ includes
directing, commanding, encouraging, intimidating, counseling, training, procuring,
recruiting, or soliciting.” Id. at app. n.1. Active involvement of a minor is not
required; the focus is on the defendant’s acts. United States v.Wingate, 369 F.3d
1028, 1032 (8th Cir. 2004).

      Rodriguez-Medrano claims his request is comparable to mere awareness of a
minor’s involvement, which does not constitute “use” for purposes of the
enhancement. United States v. Butler, 207 F.3d 839, 847 (6th Cir. 2000) (finding
§ 3B1.4 requires more than mere awareness of a minor’s involvement, it requires an
affirmative act on the part of the defendant). However, contrary to Rodriguez-
Medrano’s claim, his conduct involved more than mere awareness of a minor’s

                                          -3-
involvement. Rodriguez-Medrano took the affirmative step of requesting that his
subordinate codefendants bring their children to make them appear less suspicious.
In essence, by requesting his subordinates bring their children, Rodriguez-Medrano
encouraged them to use their children as props in a scheme to avoid detection. The
subordinates testified they took his request very seriously. Even though the decision
to bring their children was up to each individual defendant, without Rodriguez-
Medrano’s request it was unlikely his subordinates would have endangered their
children by bringing them on drug smuggling missions. Thus, § 3B1.4
unambiguously applies to Rodriguez-Medrano’s conduct described herein.

                                         III

      We affirm the judgment of the district court.
                      ______________________________




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