IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40049
Conference Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE RICHARD HOLT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:94CR82-4
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August 23, 1995
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Willie Richard Holt has appealed his sentence, raising one
issue--whether he was entitled to a two-level reduction in
offense level because he was a minor participant in the criminal
enterprise. A sentence imposed under the Sentencing Guidelines
will be upheld if it is the result of the correct application of
the Guidelines to factual findings that are not clearly
erroneous. United States v. Zuniga, 18 F.3d 1254, 1261 (5th
Cir.), cert. denied, 115 S. Ct. 214 (1994). A factual finding is
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-40049
-2-
not clearly erroneous if it is plausible in light of the record
read as a whole. Id. The determination of the defendant's role
in the offense is factual in nature, and is reviewed for clear
error. Id.
A district court must reduce a defendant's offense level by
two levels if the defendant was a minor participant. U.S.S.G.
§ 3B1.2; see United States v. Gadison, 8 F.3d 186, 197 (5th Cir.
1993). The defendant bears the burden of proving that his role
in the offense was minor. United States v. Brown, 7 F.3d 1155,
1160 n.2 (5th Cir. 1993). In making the determination, the court
must take into account the broad context of the defendant's
crime. United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.
1989), cert. denied, 495 U.S. 923 (1990). A defendant should be
considered a minor participant if he is "less culpable than most
other participants, but [his] role could not be described as
minimal." § 3B1.2, comment. (n.3). A defendant is not entitled
to a minor participant reduction unless he is substantially less
culpable than the average participant. Gadison, 8 F.3d at 197.
The fact that other co-defendants were more culpable does not
automatically qualify a defendant for either minor or minimal
participant status. See United States v. Thomas, 963 F.2d 63, 65
(5th Cir. 1992). Considering the number of times Holt
transported marijuana and the quantities involved, the district
court's refusal to give Holt a § 3B1.2(b) adjustment was not
clearly erroneous. See Buenrostro, 868 F.2d at 138.
AFFIRMED.