United States v. Aragon

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 10 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 96-1309
v. (District of Colorado)
(D.C. No. 95-CR-19-S)
MARIA LOURDES ARAGON,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA, LUCERO, and MURPHY, Circuit Judges.

Following a jury trial, Defendant Maria Lourdes Aragon was found guilty

of conspiracy to possess with intent to distribute and to aid and abet the

manufacture of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and

§ 846, and of conspiracy to possess ephedrine, knowing or having reasonable

cause to believe that the ephedrine would be used in the manufacture of

*
This order and judgment is not binding precedent, except under the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.
methamphetamine, in violation of 21 U.S.C. § 841(d)(1)-(2) and § 846. The jury

also found Aragon’s interest in certain real property subject to forfeiture, pursuant

to 21 U.S.C. § 853. In addition, Aragon was found guilty of using and carrying a

firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c), but

that count was dismissed following the Supreme Court’s decision in Bailey v.

United States, 116 S. Ct. 501 (1995). Finally, Aragon was acquitted of two other

charges, possession of ephedrine, knowing or having reasonable cause to believe

that the ephedrine would be used in the manufacture of methamphetamine, in

violation of 21 U.S.C. § 841(d)(1)-(2), and possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1). She was sentenced to

imprisonment for a term of 240 months on the first conspiracy conviction and to

imprisonment for a term of 120 months on the second conspiracy conviction, to be

served concurrently.

On appeal, Aragon argues that (1) there was insufficient evidence to

convict her of the conspiracy offenses; (2) the trial court erred by denying her

motion in limine requesting that all evidence pertaining to her use of an alias be

excluded; (3) the trial court erred by refusing her request for the appointment of a

psychologist to determine whether she suffered from an impairment which would

warrant a downward departure under the Sentencing Guidelines; (4) the trial court

erred in attributing certain drug amounts to her for purposes of determining her

-2-
base offense level under the Sentencing Guidelines; and (5) the trial court erred

by assigning her a “minor,” rather than a “minimal,” role in the conspiracy for

purposes of sentencing. This court affirms.

I. BACKGROUND

While on patrol in December 1994, a detective from the Sheriff’s

Department in Fremont County, Colorado, came upon a large U-haul truck stuck

in a ditch. The truck contained approximately twenty-one barrels of ephedrine,

which is a precursor chemical used to manufacture methamphetamine. The driver

of the truck, Ricardo Perez, was arrested. He ultimately cooperated with law

enforcement officers and testified on behalf of the government at the trial of

Aragon and her codefendants, Erenio Perez and Erasmo Perez. 1

Ricardo testified that he was involved in an extensive methamphetamine

business in Colorado with Erenio Perez, his brother. Ricardo knew Aragon as

Erenio’s girlfriend 2 and stated that she lived with Erenio in Colorado Springs. In

September 1994, Aragon, Ricardo’s wife, and another individual purchased

1
Aragon was charged in the indictment with Erenio Perez, Erasmo Perez,
and Sylvia Perez. Like Aragon, Erenio was found guilty of the two conspiracy
counts. He was also found guilty of the two possession counts and four firearm
counts, but was acquitted of one firearm count. Erasmo Perez was acquitted of all
charges. The charges against Sylvia Perez were dismissed pursuant to a plea
agreement in another case in which she was also indicted.
2
Aragon is alternately described by those who testified as Erenio’s
girlfriend and wife.

-3-
property near Westcliffe, Colorado (the “Westcliffe property”), paying $9000 cash

as a down payment. According to Ricardo, the property was purchased for

purposes of storing methamphetamine acquired in California to sell in Colorado

and barrels of ephedrine acquired in Colorado to sell in California. Ricardo

further testified that several people, including Aragon, went to California in

October 1994 to get fake driver’s licenses. Aragon obtained a license in the name

of Maria Ceja Avila.

Several officers testified about their surveillance of the defendants in late

1994 and the searches of defendants’ various properties conducted after Ricardo

was arrested. During the search of a motel room which was previously under

surveillance, officers found an itemized billing statement from the motel in the

name of Maria Avila. During the search of the Westcliffe property, officers

found methamphetamine, other illicit drugs, ammunition, firearms, a bulletproof

vest, and a vehicle with two hidden compartments. In an RV on the Westcliffe

property, officers found $84,000 in cash, firearms, and a triple beam scale. While

searching another piece of property in Colorado owned by Erenio and Ricardo,

officers found numerous barrels of ephedrine, a firearm, and ammunition. In the

home shared by Aragon and Erenio, officers found an empty barrel with the name

and address of the Chemins Company, $6580 in cash, torn records regarding the

purchase of the Westcliffe property, and various documents in the name of Maria

-4-
Aragon, Lourdes Aragon, and Maria Avila. Finally, during the search of a vehicle

purchased by Aragon using her alias, officers found throwing stars, a night vision

scope, a firearm, and $7000 in cash.

II. DISCUSSION

A. Sufficiency of the Evidence

Aragon first claims the evidence was insufficient to sustain her conspiracy

convictions. Whether the government introduced sufficient evidence to sustain

her convictions is a question of law which this court reviews de novo. See United

States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997). In examining the record,

“we view the evidence in the light most favorable to the government without

‘weigh[ing] conflicting evidence or consider[ing] the credibility of witnesses.’”

United States v. Ramirez, 63 F.3d 937, 945 (10th Cir. 1995) (alterations in

original) (quoting Kelly v. Roberts, 998 F.2d 802, 808 (10th Cir. 1993)). This

court will not reverse a jury’s guilty verdict “‘unless no rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’” Id.

(quoting Romero v. Tansy, 46 F.3d 1024, 1032 (10th Cir. 1995)). So long as the

jury’s verdict is “‘within the bounds of reason,’” it will not be disturbed on

appeal. Id. (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)).

To convict a defendant of conspiracy in violation of 21 U.S.C. § 846, the

government must establish the following elements beyond a reasonable doubt:

-5-
“(1) an agreement with another person to violate the law, (2) knowledge of the

essential objectives of the conspiracy, (3) knowing and voluntary involvement,

and (4) interdependence among the alleged conspirators.” Carter, 130 F.3d at

1439. Aragon contends the government did not meet its burden of introducing

sufficient evidence to establish any of the four elements. Although she concedes

the record is “replete with references” to her being present on occasions when

drugs were transported, she argues that “there is no evidence supporting the

required nexus between [her] presence and her knowledge or activity in

furtherance of the crimes charged.”

1. Agreement

An agreement constituting a conspiracy may be inferred “‘from the acts of

the parties and other circumstantial evidence indicating concert of action for the

accomplishment of a common purpose.’” Id. (quoting United States v. Johnson,

42 F.3d 1312, 1319 (10th Cir. 1994)). Although “mere association” with

conspirators is insufficient to support a conspiracy conviction, “frequent contacts”

among conspirators and “their joint appearances at transactions and negotiations”

tend to show the existence of an agreement. United States v. Evans, 970 F.2d

663, 669 (10th Cir. 1992) (internal quotations omitted).

The government introduced evidence that Aragon, along with two others,

purchased the Westcliffe property where illegal drugs were stored. The real

-6-
estate broker who sold the Westcliffe property testified that he received $3000

cash from each of the three purchasers as earnest money. 3 Ricardo Perez, who

testified for the government, stated that the “intended use” of the property was

“[t]o bury drugs.”

Aragon argues there was no evidence that she knew the Westcliffe property

was being used for the storage of drugs. Ricardo testified, however, that Aragon

was present on certain occasions when drugs were buried on the Westcliffe

property, though he further stated that only he and Erenio Perez knew exactly

where the drugs were buried. From this evidence, the jury could have reasonably

inferred that, although Aragon may not have known exactly where drugs were

kept on the property, she nonetheless knew that drugs were being stored there. 4

The government also introduced evidence that Aragon, using an alias, 5

During direct examination, Ricardo Perez testified that the property was
3

purchased with drug proceeds. On cross examination, however, he stated that he
was not sure where Aragon got her portion of the payment.
4
Other evidence also supported the government’s assertion that Aragon
knew the members of the conspiracy were dealing drugs. For example, Vladamar
Lansky testified that Aragon was present when he delivered ephedrine to Ricardo
Perez at an RV park and when he purchased methamphetamine from Robert Lopez
at a ranch south of Colorado Springs. Mr. Lansky further testified that Aragon
was present when he and others removed methamphetamine from a hidden
compartment in an RV, which was parked at a private residence.
5
Aragon separately argues the district court erred in admitting evidence
regarding her use of an alias. This court concludes the district court did not err in
admitting such evidence. See infra Part II.B. We therefore consider Aragon’s use
of an alias in determining whether the government presented sufficient evidence

-7-
purchased a vehicle that was used by other members of the conspiracy. During a

search of the vehicle, officers found a semiautomatic handgun, $7000 cash, four

throwing stars, and a night vision scope. Additionally, the evidence showed that

Aragon used an alias to rent a motel room during the time frame of the

conspiracy, and various vehicles linked to other members of the conspiracy were

seen at the motel during the period of the rental. Cf. United States v. Burgos, 94

F.3d 849, 872 (4th Cir. 1996) (“Employing an alias and attempting to conceal

identity reinforces the conclusion of the existence of a conspiracy.”), cert. denied,

117 S. Ct. 1087 (1997).

Finally, as Aragon concedes, the evidence established that she was present

on many occasions when drug transactions were conducted. “Mere presence” at

the scene of a crime does not, by itself, prove that a person is a member of the

conspiracy, but such presence is a “material factor.” United States v. Esparsen,

930 F.2d 1461, 1472 (10th Cir. 1991). The evidence, considered as a whole and

in a light most favorable to the government, is sufficient to establish that Aragon

entered into an agreement with her coconspirators to violate the law.

2. Knowledge of Objectives

To establish that a defendant had knowledge of the essential objectives of

the conspiracy, the government must “show that the ‘defendant shared a common

to sustain her conspiracy convictions.

-8-
purpose or design with his alleged coconspirators.’” Evans, 970 F.2d at 669

(quoting United States v. Horn, 946 F.2d 738, 740 (10th Cir. 1991)). In this case,

the apparent objective of the conspiracy was to sell drugs in Colorado which had

been purchased in California and to sell barrels of ephedrine in California which

had been purchased in Colorado. Aragon was a one-third owner of one of the

properties in Colorado used to store the drugs and barrels of ephedrine. The

evidence established that she was present during several drug transactions. The

jury could therefore have reasonably inferred that Aragon had knowledge of the

conspiracy’s objectives.

3. Knowing and Voluntary Involvement

“A jury may presume a defendant is a knowing participant in the conspiracy

when he or she acts in furtherance of the objective of the conspiracy.” Carter,

130 F.3d at 1440. As discussed, an essential component of the conspiracy was the

storage of illegal drugs on properties the defendants owned in Colorado. Aragon,

along with two others, purchased one of the properties where drugs were stored.

Her purchase of the property thus constituted an act in furtherance of the

objective of the conspiracy. The jury could therefore have reasonably concluded

that Aragon was a knowing and voluntary participant in the conspiracy.

-9-
 4. Interdependence

Interdependence among coconspirators exists when “each coconspirator’s

activities constitute essential and integral steps toward the realization of a

common, illicit goal.” Id. Although each coconspirator must generally be aware

of the existence of the other coconspirators, each coconspirator “is not required to

be personally acquainted with all coconspirators or know all of the details of the

venture.” United States v. Horn, 946 F.2d 738, 741 (10th Cir. 1991).

The coconspirators shared a common goal, the purchase and sale of

ephedrine and methamphetamine. Aragon’s purchase of the Westcliffe property,

on which drugs were stored, constituted an “essential” step toward realization of

that goal. The evidence established that other members of the conspiracy also

took affirmative steps to facilitate the goals of the conspiracy. The evidence

presented was thus sufficient to establish interdependence among the

coconspirators.

5. Summary

Although the evidence supporting Aragon’s conspiracy convictions must be

“substantial” and “do more than raise a mere suspicion of guilt, it need not

conclusively exclude every other reasonable hypothesis and it need not negate all

possibilities except guilt.” United States v. Johnson, 42 F.3d 1312, 1319 (10th

Cir. 1994) (internal quotations and citations omitted). After carefully reviewing

-10-
the record, this court concludes the government presented sufficient evidence

upon which to convict Aragon of the conspiracy charges. 6

B. Use of Alias

Aragon next contends the trial court erred by denying her motion in limine

requesting that all evidence regarding her use of an alias be excluded. In her

motion, Aragon sought to exclude thirteen evidentiary items containing her alias,

including a driver’s license, motel billing records, vehicle records, money grams,

and various receipts. The district court denied her motion, and the items were

admitted at trial, over Aragon’s objections.

On appeal, Aragon asserts the items were “never connected with any of the

other alleged [illegal] acts,” were “not inextricably intertwined as part of the

charged criminal episode,” and were not “necessary to complete the story of the

crime charged.” Aragon therefore argues the district court abused its discretion in

admitting the items because they were irrelevant and highly prejudicial. The

government first argues that because Aragon objected to the introduction of the

items at trial solely on the basis of relevance, she has waived her objection based

6
To the extent that Aragon argues the evidence was insufficient to sustain
her conspiracy convictions because the government failed to prove she actually or
constructively possessed contraband, her argument is rejected. A conspiracy
conviction for possession with intent to distribute or manufacture does not require
evidence of possession. See United States v. Slater, 971 F.2d 626, 631 (10th Cir.
1992); United States v. Esparsen, 930 F.2d 1461, 1472 (10th Cir. 1991).

-11-
on Federal Rule of Evidence 403. Alternatively, the government argues the items

were admissible, as they “were all relevant to proving [Aragon’s] knowledge and

role in the conspiracy.”

This court need not decide whether Aragon waived her objection based on

Rule 403 because we conclude the district court did not abuse its discretion in

admitting the evidence. “A district court has broad discretion in balancing the

probative value of evidence against its potential prejudicial effect, and will be

reversed only on a showing of abuse of that discretion.” United States v.

Scarborough, 128 F.3d 1373, 1378 (10th Cir. 1997).

Contrary to Aragon’s assertion, the government did tie her use of the alias

to the conspiracy. For example, all uses of the alias occurred during the time

frame of the conspiracy and, more specifically, during the four months prior to

the date she was arrested. Aragon used the alias to purchase a vehicle that was

used by other members of the conspiracy. During a search of the vehicle, officers

found a semiautomatic handgun, $7000 cash, four throwing stars, and a night

vision scope. Cf. United States v. Copeland, 51 F.3d 611, 617 (6th Cir. 1995)

(holding district court did not abuse its discretion in admitting receipts with

defendant’s alias and noting receipts tied defendant “to certain automobiles

referred to in testimony related to the drug conspiracy period”). Aragon also used

the alias to rent a motel room; during surveillance of the motel, officers observed

-12-
numerous vehicles linked to the conspiracy. This court therefore agrees with the

government that Aragon’s use of the alias was relevant to show, among other

things, her knowledge of and role in the conspiracy. Cf. United States v. Glass,

128 F.3d 1398, 1408 (10th Cir. 1997) (“A defendant’s use of an alias to conceal

his identity from law enforcement officers is relevant as proof of consciousness of

guilt.”); United States v. Walcott, 61 F.3d 635, 638 (8th Cir. 1995) (“[The

defendant’s] use of aliases and other conduct enlisted to hide his identity and

whereabouts were consistent with involvement in the drug trade.”).

Although relevant, Aragon’s use of an alias would be inadmissible under

Rule 403 if its probative value was substantially outweighed by a danger of unfair

prejudice. Aragon has failed to explain, however, how the admission of the items

containing her alias unfairly prejudiced her. Aragon apparently argues that the

items were prejudicial because they were not connected in any way to the

conspiracy, an argument which we have already rejected. Under the

circumstances, this court finds no abuse of discretion in admitting the evidence.

Cf. Scarborough, 128 F.3d at 1380 (finding no abuse of discretion in admitting

driver’s licenses with defendant’s alias because “licenses were relevant to link[]

defendant to the crime”).

-13-
 C. Appointment of Psychologist

Aragon next argues the district court erred by refusing her request for

expert services under the Criminal Justice Act (CJA). The CJA provides that

district courts shall authorize counsel of indigent defendants to retain experts

upon finding that the expert services are “necessary for adequate representation”

and that the defendant is financially unable to obtain the services. 18 U.S.C.

§ 3006A(e)(1). In an ex parte motion filed with the district court prior to

sentencing, Aragon’s counsel requested that the court authorize the hiring of a

psychologist, stating that “[i]f a psychologist could examine certain issues and

facts” concerning her background, “there may be some factual grounds under the

[Sentencing Guidelines] for a departure of a kind not taken into consideration by

the Guideline Commission.” In support of the request, counsel stated that “there

may be an issue of the defendant’s age in relation to Mr. Erenio Perez, her

husband and co-defendant. . . . This issue arises because of the death at a very

young age of [her] natural father.” The district court denied the motion, stating

that “[a]ll of the reasons set forth by [Aragon] for seeking the services of a

psychologist have already been expressly considered by the Guidelines.”

At sentencing, the district court held a closed hearing to again consider

Aragon’s request for the appointment of a psychologist. Aragon’s counsel stated

that if a psychologist examined Aragon, the psychologist may find that Aragon’s

-14-
dependence on Erenio was so extraordinary that it should be taken into account

under the Sentencing Guidelines in allowing a downward departure. Counsel

admitted that he did not know whether such dependence existed, but argued that

without a psychological evaluation, he could not know. The district court again

denied Aragon’s request.

On appeal, Aragon argues the district court abused its discretion in refusing

to appoint a psychologist. To obtain expert services under the CJA, a “defendant

must do more than allege that the services would be helpful.” United States v.

Kennedy, 64 F.3d 1465, 1470 (10th Cir. 1995). The burden is on the defendant to

show with particularity that the requested services are “necessary” to present an

adequate defense. See Castro v. Ward, No. 97-6179, 1998 WL 113193, at *16

(10th Cir. Mar. 2, 1998). “‘[U]ndeveloped assertions that the requested assistance

would be beneficial’” to the defense are not sufficient to satisfy this burden.

Matthews v. Price, 83 F.3d 328, 335 (10th Cir. 1996) (quoting Caldwell v.

Mississippi, 472 U.S. 320, 323 n.1 (1985)); see also Liles v. Saffle, 945 F.2d 333,

336 (10th Cir. 1991) (“General allegations supporting a request for court

appointment of a psychiatric expert, without substantive supporting facts, . . . will

not suffice to require the appointment of a psychiatrist to aid in the preparation of

a criminal defense.”). This court reviews the denial of a request for expert

services under the CJA for abuse of discretion. See Kennedy, 64 F.3d at 1465.

-15-
 In her brief, Aragon states that she requested a psychologist “to see if there

were any problems that could have led to her being involved with Mr. Erenio

Perez.” She further states that “[i]t is not outside the realm of possibility that

[she] could have been suffering from some . . . unhealthy dependence upon Mr.

Erenio Perez.” These general assertions, particularly in light of Aragon’s two

previous convictions for possession of methamphetamine, fail to demonstrate the

necessity of a psychologist’s services to the presentation of her defense. See, e.g.,

id. at 1470. We therefore find no abuse of discretion in the district court’s denial

of her request.

D. Drug Quantities

Aragon next argues the district court erred in considering certain drug

quantities as relevant conduct for purposes of determining her base offense level

because the quantities were not foreseeable to her. At sentencing, the district

court determined that Aragon’s base offense level was 38, based on its finding

that 63.41 kilograms of methamphetamine were attributable to her. 7

7
Because the 63.41 kilograms of methamphetamine was sufficient to
support the highest base offense level under the Sentencing Guidelines, the court
did not specifically consider whether the ephedrine involved in the conspiracy
should also be attributed to Aragon. In its sentencing statement, the government
argued that Aragon should be held accountable for 1375 kilograms of ephedrine,
based on her conviction for conspiracy to possess ephedrine, knowing and having
reasonable cause to believe that ephedrine would be used in the manufacture of
methamphetamine. For purposes of computing Aragon’s base offense level, the
government argued the ephedrine should be converted to methamphetamine at a

-16-
 This court reviews “the district court’s factual findings regarding the

quantity of drugs for which a defendant is held responsible for clear error.”

United States v. Hooks, 65 F.3d 850, 854 (10th Cir. 1995). The drug quantities

attributable to a defendant convicted of conspiracy are established not by looking

at the quantity of drugs involved in the conspiracy as a whole, but rather by

looking at the quantity of drugs the defendant reasonably foresaw or which fell

within the scope of the defendant’s agreement with coconspirators. See id.;

United States v. Roberts, 14 F.3d 502, 522 (10th Cir. 1993). The government

bears the burden of proving, by a preponderance of the evidence, the quantity of

drugs attributable to each defendant in the conspiracy. See Hooks, 65 F.3d at 854.

The district court may estimate the quantity provided the information underlying

the estimate possesses a “minimum indicia of reliability.” United States v.

Browning, 61 F.3d 752, 754 (10th Cir. 1995). The court may also consider drug

quantities associated with a drug charge for which the defendant was acquitted so

long as the government proves by a preponderance of the evidence that the

quantities were foreseeable by the defendant. See United States v. Garcia, 987

F.2d 1459, 1460-61 (10th Cir. 1993).

ratio of ten to eight, resulting in an additional 1100 kilograms of
methamphetamine attributable to Aragon.

-17-
 To support the base offense level of 38, the government was required to

prove by a preponderance of the evidence that at least thirty kilograms of

methamphetamine 8 were foreseeable by, and thus attributable to, Aragon. See

U.S.S.G. § 2D1.1(c) (amended Nov. 1, 1997). Among other drug quantities, 120

pounds (approximately fifty-four kilograms) of methamphetamine were attributed

to Aragon based on Ricardo Perez’s testimony that the Dodge Dart found on the

Westcliffe property was used to transport ephedrine to California and bring back

methamphetamine. According to Ricardo, the vehicle was used on four occasions

to bring back on each occasion approximately thirty pounds of methamphetamine,

which was then buried on the Westcliffe property until it was sold. These

activities were within the scope of the conspiracy, the purpose of which was to

sell drugs in Colorado that had been purchased in California and to sell barrels of

ephedrine in California that had been purchased in Colorado. Aragon was a one-

third owner of the Westcliffe property, which was purchased specifically for

storing drugs. According to Ricardo, Aragon was present on the property when

drugs were buried, although she did not know exactly where the drugs were

buried.

8
Effective November 1, 1997, § 2D1.1(c) of the Sentencing Guidelines was
amended so that only 15 kilograms of methamphetamine is now required to
support a base offense level of 38. See U.S.S.G. § 2D1.1(c).

-18-
 The district court’s conclusion that the 120 pounds of methamphetamine

was reasonably foreseeable to Aragon is supported by the record and is not clearly

erroneous. Because this quantity is sufficient to support Aragon’s base offense

level of 38, we need not consider whether the court erred in attributing additional

amounts of methamphetamine to Aragon.

E. Role in the Offense

Aragon’s final argument is that the district court erred by refusing to grant

her a four-level reduction in her offense level based on her alleged “minimal” role

in the conspiracy. This court reviews the district court’s factual findings

regarding a defendant’s role in the offense for clear error. See United States v.

Ayers, 84 F.3d 382, 383 (10th Cir. 1996). Questions of law concerning

application of the Sentencing Guidelines are reviewed de novo. See United States

v. Lacey, 86 F.3d 956, 967 (10th Cir.), cert. denied, 117 S. Ct. 331 (1996). The

burden is on the defendant to establish by a preponderance of the evidence that

she is entitled to an offense level reduction under the Sentencing Guidelines. See

Ayers, 84 F.3d at 383.

Section 3B1.2 of the Sentencing Guidelines “‘vests the district court with

discretion to grant a base offense level reduction if it finds a defendant is less

culpable relative to other participants in a given offense.’” Id. (quoting United

States v. Santistevan, 39 F.3d 250, 254 (10th Cir. 1994)). The court may reduce

-19-
the defendant’s offense level by four levels if it finds the defendant was a

“minimal” participant in the criminal activity, by two levels if the defendant was a

“minor” participant in the activity, or by three levels if the defendant’s actions

fell between a minimal and minor role. U.S.S.G. § 3B1.2.

In this case, the district court granted Aragon a two-level reduction, finding

that she was a minor, rather than a minimal, participant in the conspiracy. The

application notes to § 3B1.2 provide that the four-level reduction for a minimal

role “is intended to cover defendants who are plainly among the least culpable of

those involved in the conduct of a group. . . . [T]he defendant’s lack of

knowledge or understanding of the scope and structure of the enterprise and of the

activities of others is indicative of a role as a minimal participant.” U.S.S.G.

§ 3B1.2 application note 1. The notes further provide that the four-level

adjustment is to be used “infrequently” and “would be appropriate, for example,

for someone who played no other role in a very large drug smuggling operation

than to offload part of a single marihuana shipment.” Id. application note 2. A

minor participant, on the other hand, is defined as “any participant who is less

culpable than most other participants, but whose role could not be described as

minimal.” Id. application note 3.

As discussed above, Aragon purchased property on which drugs were stored

and, using an alias, purchased a vehicle which was used by other members of the

-20-
conspiracy. Her purchases facilitated the overall goals of the conspiracy. The

district court’s conclusion that Aragon was a minor, rather than minimal,

participant in the conspiracy is supported by the record and is not clearly

erroneous.

The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

ENTERED FOR THE COURT:

Michael R. Murphy
Circuit Judge

-21-