UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4712
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:09-cr-00502-CMH-1)
Submitted: March 10, 2011 Decided: April 11, 2011
Before KING, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Bodner, Fairfax, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Lisa L. Owings, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant Alejandro Hernandez appeals the
seventy-month sentence imposed after he was found guilty of
conspiracy to distribute 500 grams or more of cocaine.
Hernandez received a two-level reduction for having a minor role
in the offense, under U.S. Sentencing Guidelines Manual
§ 3B1.2(b) (2009). On appeal, Hernandez argues that he should
have received a total of four levels of reduction because he was
a minimal participant in the conspiracy. Finding no error, we
affirm.
We review a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires the court to
inspect for procedural reasonableness by ensuring that the
district court committed no significant procedural errors.
United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010).
A reviewing court then considers the substantive reasonableness
of the sentence imposed, taking into account the totality of the
circumstances. Gall, 552 U.S. at 51. This court presumes that
a sentence within a properly-calculated Guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
Hernandez challenges whether the district court acted
unreasonably in denying him a four-level reduction based on his
2
minimal role in the offense. A defendant has the burden of
showing by a preponderance of the evidence that he had a minimal
or minor role in the offense. United States v. Akinkoye, 185
F.3d 192, 202 (4th Cir. 1999). A defendant 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.” USSG § 3B1.2, comment. (n.4). 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 the defendant played a
minor or minimal role, the “critical inquiry is thus 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 quotations
and citations 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). The district
court in this case denied the minimal role reduction, and
3
instead applied the minor role reduction; this finding is not
clearly erroneous.
Hernandez argues that he did not have knowledge or
awareness of the scope, contacts, or arrangements for the deal
and was only an unwitting driver; nor did he possess the cocaine
at the time of the arrest. A minimal role reduction is improper
where the defendant’s “conduct is material or essential to
committing the offense.” United States v. Palinkas, 938 F.2d
456, 460 (4th Cir. 1991). Here, Hernandez’s role was an
essential part of the transaction. He was the driver, driving
the seller and the cocaine to the original location, then
following the buyer’s agent and the cocaine to the new deal
location with the other co-conspirators in the truck, he stayed
with the group for approximately two hours while they waited for
the buyer to arrive. Hernandez’s actions demonstrate that he
understood what he and his co-conspirators were undertaking and
that he was, at the least, working with the seller to facilitate
the deal.
Under these circumstances, we conclude that the
district court did not clearly err by refusing to award a
greater mitigating role adjustment. Because the district court
correctly calculated Hernandez’s Guidelines range, there are no
procedural defects in his sentence. Hernandez does not
4
challenge on appeal 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
5