United States v. Ocampo-Ochoa-Ramirez ( 1995 )

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          May 8, 1995           [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]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.
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               Guillermo Gil,  United States  Attorney, and Jose  A. Quiles
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          Espinosa, Senior Litigation Counsel, on brief for appellee.
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                    Per Curiam.  This  is a single-issue sentencing appeal.
Per Curiam
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          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
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          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
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          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
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          (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),
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          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
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          v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991).
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          participant" in  similar offenses, see United  States v. Brandon,
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          17  F.3d 409,  460 (1st  Cir. 1994),  or, put  another  way, only

          tangentially involved  in the  offense of conviction,  see United
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          States  v. Cepeda,  907 F.2d  11, 12  (1st Cir.  1990).   On this
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          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
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          1st Cir. R. 27.1; see also United States v. Ruiz-Garcia, 886 F.2d
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          474, 477 (1st Cir. 1989).



          Affirmed.
Affirmed
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