United States v. Ocampo-Ochoa-Ramirez

USCA1 Opinion









May 8, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

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No. 94-1897

UNITED STATES OF AMERICA,

Appellee,

v.

JAIME OCAMPO OCHOA-RAMIREZ,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge] ___________________

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Before

Selya, Cyr and Boudin,
Circuit Judges. ______________

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H. Manuel Hernandez on brief for appellant. ___________________
Guillermo Gil, United States Attorney, and Jose A. Quiles _____________ _______________
Espinosa, Senior Litigation Counsel, on brief for appellee. ________

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Per Curiam. This is a single-issue sentencing appeal. Per Curiam __________

Having carefully reviewed the record and the briefs, we conclude

that no hint of error appears. We explain briefly.

A defendant has the burden of proving his entitlement

to a downward adjustment in the base offense level referable to

his role in the offense. See United States v. Ocasio, 914 F.2d ___ _____________ ______

330, 332 (1st Cir. 1990). Such determinations are primarily for

the district court. Once they have been made, we review them

only for clear error.1 See id. at 333. Moreover, "where there ___ ___

is more than one plausible view of the circumstances, the

sentencing court's choice among supportable alternatives cannot

be clearly erroneous." United States v. Ruiz, 905 F.2d 499, 508 _____________ ____

(1st Cir. 1990). On this record, appellant cannot overcome the

combined force of these tenets. The district court's decision

not to make any adjustment for role in the offense seems amply

warranted.

Although this conclusion is fully dispositive of the

appeal, we add a point of clarification. Contrary to appellant's

importuning, a defendant is not a "minor" participant merely

because he is, relatively speaking, less culpable than the

coconspirators with whom he is aligned. See U.S.S.G. 3B1.2(b), ___

comment. (n.3). He must be "less culpable than the average
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1Here, of course, the standard is even less welcoming to the
defendant. Appellant did not ask the district court for a "minor
participant" adjustment (although he did unsuccessfully seek a
"minimal participant" adjustment). Because appellant argues on
appeal a point not raised below, our review is, at best, as
defense counsel acknowledges, for plain error. See United States ___ _____________
v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991). _____

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participant" in similar offenses, see United States v. Brandon, ___ ______________ _______

17 F.3d 409, 460 (1st Cir. 1994), or, put another way, only

tangentially involved in the offense of conviction, see United ___ ______

States v. Cepeda, 907 F.2d 11, 12 (1st Cir. 1990). On this ______ ______

standard, appellant was obviously not a minor participant in the

drug-trafficking scheme.

We need go no further. We summarily affirm appellant's

conviction and the sentence imposed by the district court. See ___

1st Cir. R. 27.1; see also United States v. Ruiz-Garcia, 886 F.2d ___ ____ _____________ ___________

474, 477 (1st Cir. 1989).



Affirmed. Affirmed ________






























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