UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5121
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SUSANO SANDOVAL-ROJO,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00378-NCT-7)
Submitted: September 2, 2009 Decided: September 18, 2009
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles H. Harp, II, CHARLES H. HARP, II, P.C., Lexington, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Susano Sandoval-Rojo pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute 100 kilograms
or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (2006). The district court sentenced him to 108
months’ imprisonment. Sandoval-Rojo appeals his sentence,
asserting that the district court erred in refusing to award him
a downward adjustment for his minor role in the conspiracy. We
affirm.
Appellate review of a district court’s imposition of a
sentence (whether inside or outside of the Guidelines range) is
for abuse of discretion. Gall v. United States, 552 U.S. 38,
___, 128 S. Ct. 586, 596 (2007). In conducting that review,
this court
must first ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C. §] 3553(a) [(2006)]
factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the
chosen sentence--including an explanation for any
deviation from the Guidelines range. Assuming that
the district court’s sentencing decision is
procedurally sound, [this] court should then consider
the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard. When
conducting this review, the court will, of course,
take into account the totality of the circumstances,
including the extent of any variance from the
Guidelines range.
Id. at 597.
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A defendant bears the burden of showing by a
preponderance of the evidence that he had a mitigating role in
the offense, see United States v. Akinkoye, 185 F.3d 192, 202
(4th Cir. 1999), and may receive a four-level reduction for
being a minimal participant if he is “plainly among the least
culpable of those involved in the conduct of a group.” U.S.
Sentencing Guidelines Manual (“USSG”) § 3B1.2, comment. (n.4)
(2007). This level of culpability is shown by “the defendant’s
lack of knowledge or understanding of the scope and structure of
the enterprise and of the activities of others . . . .” Id. A
two-level reduction may be made when a defendant is a minor
participant; that is, one “who is less culpable than most other
participants, but whose role could not be described as minimal.”
USSG § 3B1.2, comment. (n.5).
In deciding whether a defendant played a minor or
minimal role, “[t]he critical inquiry is . . . not just whether
the defendant has done fewer bad acts than his co-defendants,
but whether the defendant’s conduct is material or essential to
committing the offense.” United States v. Pratt, 239 F.3d 640,
646 (4th Cir. 2001) (internal quotation marks and citation
omitted). Role adjustments are determined on the basis of the
defendant’s relevant conduct. United States v. Fells, 920 F.2d
1179, 1183-84 (4th Cir. 1990). We review for clear error a
district court’s decision regarding a defendant’s role in the
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offense. United States v. Kiulin, 360 F.3d 456, 463 (4th Cir.
2004).
Our review of the record leads us to conclude that the
district court did not clearly err because Sandoval-Rojo failed
to meet his burden of showing that he was less culpable than
most other participants in the charged conspiracy. The district
court thus did not commit procedural error in refusing to award
Sandoval-Rojo a downward adjustment under USSG § 3B1.2(b), and
Sandoval-Rojo does not challenge the substantive reasonableness
of his sentence. Accordingly, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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