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May 8, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]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