No. 99-40638
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40638
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTOS LOPEZ-RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-98-CR-450-ALL
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April 13, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Santos Lopez-Ramirez (“Lopez”) appeals his sentence
following his guilty plea to conspiracy to possess, with the
intent to distribute, heroin. Lopez asserts that the district
court misapplied U.S.S.G. § 3B1.2(b) by denying him a two-level
minor role adjustment on the basis of: (1) a prior drug offense
that was not part of the relevant conduct in the instant case and
(2) his instant co-conspirator’s lack of involvement in the prior
drug offense.
*
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that this opinion should not be published and is not precedent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.
No. 99-40638
-2-
Under § 3B1.2(b), based on the defendant’s role in the
offense, the defendant’s offense level should be reduced by two
levels if the defendant was a minor participant in the criminal
activity. The determination of a defendant’s role in the offense
is to be made on the basis of all conduct within the scope of the
relevant conduct, and not solely on the basis of elements and
acts cited in the count of conviction. U.S.S.G. Ch.3, Pt.B,
intro. comment.
In making its § 3B1.2(b) minor role determination, the
district court did consider a prior drug offense that was not
part of the relevant conduct for Lopez’s instant offense. It is
clear, however, that the district court considered that prior
offense for the purpose of evaluating the credibility of Lopez’s
assertion that he was merely following his co-conspirator’s
orders with respect to the instant offense. Moreover, the
district court made implicit findings supporting its minor role
determination by adopting the presentence report, which had
determined that Lopez was not entitled to a minor role adjustment
based on his relevant conduct. The district court thus
sufficiently articulated a proper factual basis for denying Lopez
a minor participant adjustment. See United States v. Gallardo-
Trapero, 185 F.3d 307, 324 (5th Cir. 1999), cert. denied, 120 S.
Ct. 961 (2000).
The judgment of the district court is AFFIRMED.