United States v. Hernandez ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 29 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-3069
v. D.C. No. 01-CR-40088-02-SAC
(D. Kansas)
MANUEL J. HERNANDEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant, Manuel J. Hernandez, and a co-defendant, James Raymond
Harris, were charged in a two-count indictment with robbery of a credit union in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
violation of 18 U.S.C. §§ 2 and 2113(a) & (d), and with use of a firearm during
the commission of a federal crime of violence in violation 18 U.S.C. §§ 2 and
924(c). Pursuant to a plea agreement, Hernandez pleaded guilty to the count of
robbery in violation of 18 U.S.C. § 2113(d). In exchange for his guilty plea, the
government dismissed the remaining count in the indictment. The district court
accepted Hernandez’ plea and sentenced him to 57 months’ imprisonment and
three years’ supervised release with special conditions of supervision. Hernandez
appeals his sentence arguing that the district court clearly erred in failing to find
he was a minor participant in the robbery and in refusing to reduce his base
offense level under U.S.S.G. § 3B1.2.
Hernandez’ counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), wherein counsel advises this court that Hernandez’ appeal is
wholly frivolous. Accordingly, counsel has also filed a motion to withdraw.
Hernandez has been given notice of the Anders brief and counsel’s motion to
withdraw. Hernandez has failed to respond to this notice.
The district court has the discretion under § 3B1.2 to grant a defendant a
two-level reduction in base offense level if it finds that the defendant was a minor
participant in the charged offense. U.S.S.G. § 3B1.2; United States v.
Santistevan, 39 F.3d 250, 254 (10th Cir. 1994). The defendant has the burden to
establish, by a preponderance of the evidence, that he is entitled to a § 3B1.2
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reduction. Santistevan, 39 F.3d at 254. “A trial court’s determination as to
whether a defendant was a minimal or minor participant is a factual finding that
we review only for clear error.” United States v. Lockhart, 37 F.3d 1451, 1455
(10th Cir. 1994).
Hernandez objected to the Presentence Investigation Report (“PSR”)
arguing that a two-level reduction in his base offense level was appropriate under
§ 3B1.2. The district court addressed Hernandez’ objection at the sentencing
hearing. Hernandez’ counsel stated that Hernandez would rely on the PSR for the
factual basis of his argument. Hernandez himself also declined to present any
additional evidence regarding his participation in the robbery. Using facts set
forth in the PSR, the district court found that Hernandez “drove Harris to the
credit union, supplied Harris with a gun, and went to a predetermined location to
assist Harris in fleeing from the robbery.” The district court found that under
these circumstances, Hernandez was not a minor participant in the robbery and
concluded that a reduction in base offense level under § 3B1.2 was not warranted.
Hernandez does not dispute the district court’s findings regarding his
participation in the robbery. He does, however, argue that because he did not
enter the credit union, retrieve the money, brandish the gun, or threaten credit
union employees, the district court was required to find him a minor participant
under § 3B1.2. A defendant, however, is not entitled to a base offense level
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reduction under § 3B1.2 merely because he was comparatively less culpable than
his co-defendant. Lockhart, 37 F.3d at 1455; United States v. Caruth, 930 F.2d
811, 815 (10th Cir. 1991). Rather, the defendant must be “substantially less
culpable than the average participant.” U.S.S.G. § 3B1.2, cmt. n.3(A).
The district court’s determination that Hernandez was not a minor
participant is supported by substantial evidence and is not clearly erroneous.
Consequently, we ascertain no error in the district court’s conclusion not to grant
Hernandez a base offense level reduction under § 3B1.2.
Upon review of the record, this court concludes that no non-frivolous
grounds for appeal exist. The district court’s sentence is affirmed and counsel’s
motion to withdraw is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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