UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10058
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ARMANDO CAICEDO SINISTERRA, also known as ARMANDO CAECEDO
SINISTERRA,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(3:97-CR-250-2-D)
November 5, 1998
Before REYNALDO G. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM*:
Appellant Armando Caicedo Sinisterra pleaded guilty to a one-
count indictment charging him and codefendant Jaime Gustavo Garces
with attempting to possess with intent to distribute cocaine.
Sinisterra’s Presentence Report (“PSR”) contained the following
recommendations: Sinisterra’s base offense level was 34, based on
30 kilograms of cocaine. U.S.S.G. 2D1.1(a)(3). Sinisterra was
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
entitled to a two-level reduction for acceptance of responsibility,
placing his total offense level at 32. U.S.S.G. 3E1.1. Sinisterra
had only one criminal history point for a 1997 DUI conviction, but
because the instant offense was allegedly committed while
Sinisterra was on probation, two more points were to be added,
giving him a Category II criminal history score. U.S.S.G.
4A1.1(d). Sinisterra’s total offense level and criminal history
score resulted in a guideline sentencing range of 135 to 168
months. The offense of conviction carried a minimum prison term of
10 years. 21 U.S.C. § 841(b)(1)(A).
In written objections, Sinisterra argued that he was entitled
to a two-level reduction for having only a “minor role” in the
offense under U.S.S.G. § 3B1.2. With respect to the DUI
conviction, Sinisterra argued that the two extra points should not
be added because he was not in fact on probation at the time of the
instant offense, and that he thus should have a Category I criminal
history. Sinisterra also sought a “safety valve” departure below
the statutory minimum pursuant to U.S.S.G. § 5C1.2.
The district court overruled Sinisterra’s request for a “minor
role” reduction, leaving his offense level at 32. The district
court further determined that Sinisterra’s Category II criminal
history score overstated Sinisterra’s criminal past, reduced his
score to Category I, and determined that Sinisterra’s objection to
the additional two criminal history points was mooted. This left
Sinisterra’s guideline sentencing range at 121-151 months. Only
because his guideline range remained above the statutory minimum
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sentence, the district court overruled Sinisterra’s request for a
“safety valve” reduction. However, the district court agreed on
the record that otherwise, Sinisterra satisfied the criteria for
such a reduction. The district court also overruled Sinisterra’s
request for an additional one-point reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1. The district court
sentenced Sinisterra to 121 months in prison and to five years of
supervised release. Sinisterra timely appeals his sentence.
Sinisterra first argues that the district court erred in
denying his request for a “minor role” reduction. Sinisterra
maintains that he was clearly less culpable than his codefendant,
Garces, and at most that he acted only as a “mule” in the drug
transaction. “If the defendant was a minor participant in any
criminal activity,” his offense level should be decreased by two
levels. U.S.S.G. § 3B1.2(b). “[A] minor participant means any
participant who is less culpable than most other participants, but
whose role could not be described as minimal.” Id., Commentary,
Application Note 3. The fact that codefendants were more culpable
does not automatically qualify a defendant for a minor role
reduction. United States v. Atanda, 60 F.3d 196, 198 n.1 (5th Cir.
1995). The defendant’s level of participation must be sufficiently
lower than that of other participants so “that he at best was
peripheral to the advancement of the illicit activity.” United
States v. Tremelling, 43 F.3d 148, 153 (5th Cir. 1995). The
defendant bears the burden of proving that his role in the offense
was “minor.” Atanda, 60 F.3d at 198. A district court’s finding
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that a defendant is not entitled to a § 3B1.2 reduction is reviewed
for clear error. United States v. Flucas, 99 F.3d 177, 181 (5th
Cir. 1996).
Although Sinisterra’s codefendant Garces appears to have
arranged for the purchase of the 30 kilograms of cocaine,
Sinisterra had a significant role in attempting to buy the cocaine.
Sinisterra drove the van carrying $68,000 for the cocaine; he
personally retrieved the money; he inspected several packages of
the alleged cocaine; and he asked the undercover task force agent
whether all 30 kilograms were present. Based on the foregoing, the
district court did not clearly err in determining that Sinisterra
played more than a “minor” role in attempting to buy this
particular 30 kilograms of cocaine.
Next, Sinisterra contends that the district court erred when
it determined that his objection to his criminal history score was
moot. He argues that if the district court concluded that he had
a Category I criminal history score, he would be entitled to the
“safety valve” reduction of sentence. He urges this court to
remand the case to the district court for specific findings on his
challenge to the Probation Office’s assertion that he committed the
instant offense while on probation for a DUI offense. Sinisterra’s
argument fails because the district court ultimately determined
that he had a Category I criminal history score, when it found that
his Category II score as determined by the Probation Office over-
represented his criminal past. Thus, we perceive no error by the
district court in failing to make specific findings regarding
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whether Sinisterra was on probation when he committed the instant
offense.
Finally, Sinisterra challenges the district court’s conclusion
that he was not eligible for the “safety valve” reduction.
Although he met the criteria provided in U.S.S.G. § 5C1.2, the
district court found Sinisterra was not eligible for the “safety
valve” reduction because his guideline sentence range (121-151
months) at base offense level 32 was not below the statutory
minimum of ten years. Although this is correct, Sinisterra argues
for the first time on appeal that he is nonetheless entitled to a
two-level reduction in base offense level which would result in a
sentencing range of 97-121 months under U.S.S.G. § 2D1.1(b)(6),
thus placing his guideline range below the mandatory minimum
sentence and entitling him to the “safety valve” reduction. The
Government failed to respond to Sinisterra’s argument regarding §
2D1.1(b)(6).
Because Sinisterra raises this argument for the first time on
appeal, we will reverse only upon a finding of plain error. FED.
R. CRIM. P. 52(b); United States v. Olano, 507 U.S. 725 (1993);
United States v. Calverley, 37 F.3d 160 (5th Cir. 1994)(en banc).
Under the plain error standard: (1) there must be error; (2) the
error must be clear or obvious; and (3) the error must affect
substantial rights. Calverley, 37 F.3d at 162-64. Even if these
factors are established, it is within our sound discretion whether
to correct the forfeited error. Olano, 507 U.S. at 735. We will
correct plain error when the error seriously affects the fairness,
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integrity or public reputation of the judicial proceedings. Olano,
507 U.S. at 736.
Section 2D1.1(b)(6) provides: “If the defendant meets the
criteria set forth in subdivisions (1)-(5) of § 5C1.2 . . . and the
offense level determined above is level 26 or greater, decrease by
2 levels.” The district court determined that Sinisterra met the
criteria of § 5C1.2 and Sinisterra’s offense level was greater than
26. Thus an error occurred in computing Sinisterra’s base offense
level. Under § 2D1.1(b)(6) his base offense level should have been
30 with a corresponding sentencing range of 97-121 months. This
error was clear and obvious as it was evident from a plain reading
of § 2D1.1(b)(6). See United States v. Aderholt, 87 F.3d 740, 744
(5th Cir. 1996)(finding obvious error from reading the statute).
We next address whether the error affected substantial rights.
We have noted that a misapplication of the Guidelines may
constitute plain error. See United States v. Franks, 46 F.3d 402,
403 (5th Cir. 1995)(concluding that a four-level error in offense
level causing defendant to be sentenced to an additional 63 months
imprisonment was plain error). See also Aderholt, 87 F.3d at 744
(concluding that substantial rights were affected because absent an
upward departure, defendant would have received a lesser sentence).
Our recent decision in United States v. Leonard, ___ F.3d ___, 1998
WL 671374 (5th Cir. 1998), however, mandates the conclusion that
Sinisterra’s substantial rights were not affected. The Leonard
court was faced with a plain error determination involving the same
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Guideline at issue in the case at bar.2 The Leonard court found
that failure to decrease an offense level by two levels pursuant to
§ 2D1.1(b)(4) was an error which was clear and obvious. Had the
error not occurred, the resulting offense level would have been 30
instead of 31 (the district court had reduced the offense level by
only one level) and the resulting guideline range would have been
97-121 months. Because the district court sentenced Leonard to 108
months imprisonment and because upon remand the district court
could reinstate the same sentence under the correct guideline
range, the court upheld the sentence, citing United States v.
Ravitch, 128 F.3d 865, 869 (5th Cir. 1997).
We are faced with a similar situation here. Sinisterra was
sentenced to 121 months imprisonment. Upon remand for
resentencing, the correct guideline range would be 97-121 months.
Because the district court could impose the same sentence upon
remand under the appropriate guideline range, we conclude that
Sinisterra’s substantial rights were not affected. Accordingly, we
affirm the sentence imposed by the district court.
AFFIRMED.
2
At the time Leonard was sentenced, the provision regarding a
two-level reduction if the criteria of § 5C1.2 were met and the
offense level was 26 or greater was contained in § 2D1.1(b)(4).
Under the version of the Guidelines in effect at the time
Sinisterra was sentenced, that same provision is now contained in
§ 2D1.1(b)(6).
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