                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1714
                                    ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the District
                                       * of Minnesota.
Adrian Tinajero,                       *
                                       *
            Defendant - Appellant.     *
                                  ___________

                              Submitted: October 16, 2006
                                 Filed: December 5, 2006
                                  ___________

Before MELLOY, BEAM, and BENTON, Circuit Judges
                           ___________

MELLOY, Circuit Judge.

       Defendant Adrian Tinajero appeals the sentence he received after pleading
guilty to one count of aiding and abetting the distribution of amphetamine in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. The district court1 found
that Defendant was not entitled to safety-valve relief, was not entitled to a role
reduction, and was subject to a two-level enhancement for obstruction of justice.
Defendant challenges all of these findings. We affirm.



      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
I.    Background

       A special agent and a confidential informant set up a controlled drug transaction
with Defendant’s brother, Ixsael Tinajero, to take place at a fast-food restaurant in
Worthington, Minnesota. The agent and confidential informant were in a pick-up
truck in the restaurant’s parking lot. Ixsael Tinajero and Alexander Sandoval arrived
together in a vehicle, and Defendant arrived with Jose Guadalupe in a separate
vehicle. The confidential informant exited the truck and spoke to Ixsael Tinajero.
Ixsael Tinajero then entered the truck. Later, Defendant approached the truck,
carrying a one-pound, plastic-wrapped package under his shirt. Defendant then
entered the truck and handed the package to Ixsael, who gave it to the agent. The
agent then gave Ixsael $7500, which Ixsael counted in the presence of Defendant and
the agent. Additional officers then arrested Ixsael Tinajero, Sandoval, Defendant, and
Guadalupe. It was later determined that the package contained a substance or mixture
of amphetamine. A grand jury indicted Ixsael Tinajero, Sandoval, and Defendant.
Ixsael Tinajero and Sandoval eventually pled guilty to charges of conspiring to
distribute in excess of 500 grams of a mixture of amphetamine.

       Following indictment, while on pretrial release, Defendant fled to Mexico. He
then failed to appear for his trial and remained a fugitive for over a year. While in
Mexico, he did not maintain contact with the court or his attorney. He then was
arrested while attempting to re-enter the United States and was returned to Minnesota.
Following his return to Minnesota, he sought the opportunity to plead guilty and offer
information in an attempt to secure safety-valve relief and obtain an offense-level
reduction for acceptance of responsibility under the United States Sentencing
Guidelines.

      During a proffer session where Defendant was represented by counsel, he
claimed that he went to Sandoval’s house in Sioux City, Iowa, on the day before the
controlled transaction. There, Sandoval asked him for a ride to Worthington.

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Defendant agreed, and Sandoval handed him the plastic-wrapped package of drugs,
asking Defendant to hold on to the package. Defendant claimed that he did not know
at the time that the package contained drugs and that Sandoval did not tell him the
package contained drugs. Defendant stated that the package did have a chemical odor.
According to Defendant, on the following day—the day of the controlled
transaction—Ixsael Tinajero and Sandoval drove together to Worthington, and
Defendant and another man drove separately, carrying the package to Worthington.
Defendant claimed that he did not know the package contained drugs until officers
interrupted the controlled transaction to arrest the participants, at which time Ixsael
Tinajero told him to hide the package. Defendant did not explain why Sandoval drove
himself to Minnesota even though Defendant had claimed that Sandoval initially
asked him for a ride.

       During the proffer session, Defendant denied having ever used drugs and
answered no when asked if he had ever been in Oklahoma. Both of these statements
were false. Regarding drug use, he now asserts that, although he had previously used
drugs, he thought the question was whether he had ever sold drugs. When confronted
with an Oklahoma business card police had obtained from his wallet, Defendant
admitted that, in fact, he had driven through Oklahoma, but he thought the initial
question was whether he had ever stayed in Oklahoma. Later, at his plea colloquy,
Defendant contradicted his earlier claim that he was unaware of the contents of the
package. Specifically, by pleading guilty, Defendant admitted that he knowingly
aided and abetted in the transaction.

        At sentencing, Defendant received a two-level reduction for acceptance of
responsibility. Defendant argued that he should not receive an enhancement for
obstruction of justice based on his flight to Mexico. In support of his argument, he
asserted that his flight from Minnesota, his time as a fugitive, and his failure to appear
for trial were all for the purpose of caring for his ailing father. He presented a letter
from a doctor in Mexico who stated that Defendant’s father lived in a rural area and

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that the father needed family assistance following major surgery to change dressings
and avoid infection. Defendant also sought a reduction in his offense level for having
played only a minor role in the offense and safety-valve relief based on his claim that,
prior to sentencing, he truthfully disclosed all that he knew regarding the offense. The
district court determined that Defendant had not truthfully disclosed all that he knew
regarding the offense, in that Defendant was not credible (given his lies about drug
use and travel to Oklahoma) and that his claim regarding ignorance of the package’s
contents was unbelievable. As a result, the district court denied safety-valve relief.
The district court rejected Defendant’s attempt to excuse his escape to Mexico,
absence from trial, and time as a fugitive and applied a two-level enhancement for
obstruction of justice based on Defendant’s actions. Finally, the district court denied
Defendant’s request for a role reduction under U.S.S.G. § 3B1.2 because the district
court disbelieved Defendant’s claims regarding the limited extent of his role in the
offense.

II.   Discussion

       All of the issues on appeal rest upon factual determinations made by the
sentencing court. We review these factual determinations for clear error. United
States v. Little Hawk, 449 F.3d 837, 839 (8th Cir. 2006); United States v. Stanley, 362
F.3d 509, 511 (8th Cir. 2004). We review the district court’s interpretation and
application of the Sentencing Guidelines de novo. United States v. Mashek, 406 F.3d
1012, 1016 (8th Cir. 2005). Defendant does not challenge the overall reasonableness
of his sentence.




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A.    Denial of Safety-Valve Relief

      A defendant is only eligible for safety-valve relief if, inter alia:

      [n]ot later than the time of the sentencing hearing, the defendant has
      truthfully provided to the Government all information and evidence the
      defendant has concerning the offense or offenses that were part of the
      same course of conduct or of a common scheme or plan . . . .

U.S.S.G. § 5C1.2(a)(5). Here, the district court made a factual finding that Defendant
did not comply with the requirement of full and truthful disclosure. The district court
expressly found that Defendant told an unbelievable story regarding knowledge of the
contents of the package and that this story was an attempt to falsely characterize his
own role in the offense as minimal.

       The district court’s finding enjoys adequate support and is not clearly
erroneous. Defendant’s actions, as observed by the surveillance officers and the agent
involved in the controlled transaction, were inconsistent with his claimed ignorance
of the contents of the package. Specifically, his acts of carrying the package
concealed beneath his shirt, handing it to Ixsael at the site of the transaction, and
watching the undercover officer pay Ixsael $7500 are inconsistent with his claim of
not knowing the contents of the package until a later time. Also, the package he
received from Sandoval was wrapped in plastic and carried a chemical smell, making
it even less likely that he didn’t know its contents. In addition, the district court
reasonably found other aspects of Defendant’s story unbelievable. Although
Defendant claimed his role was limited and Sandoval had merely asked him for a ride,
Sandoval did not actually ride with Defendant, and Defendant offered no adequate
explanation for this inconsistency. Further, the district court reasonably concluded
that, if Defendant’s role was as limited as he claimed, Sandoval would not have
entrusted him with a full pound of drugs. See United States v. Alvarado-Rivera, 412
F.3d 942, 948 (8th Cir. 2005) (en banc) (in a case involving twenty-seven pounds of

                                          -5-
methamphetamine, approving an inference regarding the level of a defendant’s
involvement with a drug enterprise based on the quantity of illicit drugs entrusted to
the defendant). Because the district court did not clearly err when it determined that
Defendant failed to satisfy the disclosure requirement of U.S.S.G. § 5C1.2(a)(5), we
affirm the district court’s denial of safety-valve relief.

B.    Application of Obstruction of Justice Enhancement

       Defendant argues that his flight from Minnesota while on pre-trial release
should not be considered obstruction of justice because his flight was motivated by
a desire to aid his ailing father. Under U.S.S.G. § 3C1.1, a two-level increase is
warranted if a “defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the course of the investigation,
prosecution, or sentencing. . . .” Application Note 4(e) to § 3C1.1 lists “willfully
failing to appear, as ordered, for a judicial proceeding” as an example of conduct that
warrants application of this enhancement. Here, Defendant willfully failed to appear
for trial even though he was under an order to appear. The district court correctly
noted that Defendant did not voluntarily surrender, but was captured while attempting
to re-enter the United States. We note also that Defendant failed to maintain contact
with his attorney and remained a fugitive for an extended period of time.

        Defendant claims that his absence was for an excusable purpose, namely, to
care for his father. Defendant, however, comes from a large family and does not
explain why he, rather than one of his many siblings, had to care for his father.
Further, Defendant does not explain his failure to maintain contact or return
voluntarily when the alleged medical emergency had passed. Accordingly, even if we
could excuse his obstruction of justice based on the nature of the alleged purpose for
his flight, he has not presented facts that would justify overlooking his actions in this
case. The district court did not clearly err in finding that Defendant obstructed justice,
and it properly applied the two level enhancement.

                                           -6-
      C.     Denial of Minor Role Adjustment

      As noted, the district court denied a minor role adjustment based on
Defendant’s admitted and observed conduct and based on a disbelief of Defendant’s
claims about having played a minor role. Defendant argues that he was merely a mule
who did not appreciate the gravity of his actions or the contents of the package before
it was too late. The evidence, however, showed that Defendant was not merely a
mule, but participated in the actual drug transaction as one of the two persons who
entered the vehicle with the agent and confidential informant to consummate the
transaction. In addition, we note again that his fellow defendants trusted him with
over a pound of drugs.

       Under U.S.S.G. § 3B1.2, a defendant who is a minimal participant may be
entitled to a four-level reduction in his offense level, and a defendant who is a minor
participant may be entitled to a two-level reduction. A defendant who falls between
these two categories may be entitled to a three-level reduction. Id. “‘The propriety
of a downward adjustment is determined by comparing the acts of each participant in
relation to the relevant conduct for which the participant is held accountable and by
measuring each participant’s individual acts and relative culpability against the
elements of the offense.’” United States v. Morales, 445 F.3d 1081, 1085 (8th Cir.
2006) (quoting United States v. Ramos-Torres, 187 F.3d 909, 915 (8th Cir. 1999)).
Here, at least four persons were involved in the activities surrounding the controlled
transaction. Of those four persons, only two participated in the actual transaction,
Defendant and Ixsael Tinajero. According to his own proffer statement, Defendant
received the drugs, housed the drugs, transported the drugs from Sioux City to
Minnesota, carried the drugs to the buyer’s car, and participated in the actual
transaction. Given these admitted acts, we do not believe the district court clearly
erred in denying a mitigating-role adjustment.




                                         -7-
       Defendant argues primarily that the sentencing court improperly relied on a
statement made by co-defendant Sandoval in order to assess Defendant’s role in the
offense. This argument is without merit. Defendant objected to the sentencing court’s
reliance on Sandoval’s statement. The district court considered the objection and, at
sentencing, stated:

      First, the defendant objects to paragraph 11 of the PSR alleging that the
      statement of co-defendant[,] Alexander Sandoval, included erroneous
      facts. However, the probation officer simply reported what co-defendant
      Sandoval had stated and not whether such statements were based on true
      facts. Moreover, the Court determines that the findings on this factual
      objection are not necessary because the controverted matter will not be
      taken into account or affect sentencing.

Because the district court stated expressly that it was not considering the objected-to
statement at sentencing, and because the district court’s findings regarding
Defendant’s role in the offense are otherwise supported by substantial evidence, we
affirm the district court’s denial of a minor role adjustment.

       The judgment of the district court is affirmed.
                     ______________________________




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