UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50193
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IRWIN JOSE BONILLA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-00-CR-1522-ALL-DB)
_________________________________________________________________
November 26, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In challenging the sentence (including 27 months imprisonment)
for his convictions for importation of, and possession with intent
to distribute, marijuana, Irwin Jose Bonilla maintains the district
court erred in denying him an offense level reduction, pursuant to
U.S.S.G. § 3B1.2, for his role in the offense.
The district court’s application of the Sentencing Guidelines
is reviewed de novo; its findings of fact, for clear error. E.g.,
United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997). A
ruling that a defendant did not play a minor role in the offense is
*
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this opinion should not be published and is not precedent except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.
reviewed only for clear error. E.g., United States v. Zuniga, 18
F.3d 1254, 1261 (5th Cir.), cert. denied, 513 U.S. 880 (1994).
The Guidelines allow a minor participant in any criminal
activity a two-level reduction in his base offense level. U.S.S.G.
§ 3B1.2(b). A “minor participant” is defined as one who is “less
culpable than most other participants, but whose role could not be
described as minimal”. U.S.S.G. § 3B1.2, cmt. n.3 (2000). The
defendant bears the burden of proving he was a minor participant.
United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir. 1997),
cert. denied, 525 U.S. 1056 (1998).
Bonilla was not charged with conspiracy; he was charged with
importation of, and possession with intent to distribute,
marijuana. His sentence was calculated based on the quantity of
marijuana (approximately 38 kilograms) he transported in his
vehicle. Marmolejo held that the defendant could not claim to be
a minor participant in relation to his offense when his sentence
was based only on the amount of drugs he participated in
transporting. 106 F.3d at 1217; see United States v. Flucas, 99
F.3d 177, 180-81 (5th Cir. 1996) (holding that defendant was not
entitled to an adjustment under U.S.S.G. § 3B1.2, because he had
been held accountable only for drugs in his possession), cert.
denied, 519 U.S. 1156 (1997).
Accordingly, even assuming Bonilla was only a “mule” in a
narcotics organization, he would not be entitled to an adjustment
under U.S.S.G. § 3B1.2, because his limited participation in the
organization was not relevant to his sentence, which was based only
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on the amount of drugs he transported. Therefore, Bonilla’s
contention that the district court based its ruling on Bonilla’s
silence at the sentencing hearing, rather than on the evidence
presented, is without merit.
AFFIRMED
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