United States v. Lira ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-6279
v.
(D.C. No. 97-CR-32)
(W.D. Okla.)
VICENTE LIRA, a/k/a Vicente Lira-
Hidrogo,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the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.
Mr. Vicente Lira appeals his sentence of seventy months imprisonment for
conspiracy to distribute heroin and cocaine, and possession of cocaine with intent
to distribute in violation of 21 U.S.C. §§ 841(a) and 846. The sole issue on
appeal is whether the district court erred in denying Mr. Lira a two-level
reduction to his base offense level for his role in the conspiracy under United
States Sentencing Commission Guidelines Manual ("U.S.S.G.") § 3B1.2(b). We
exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and
affirm.
Section 3B1.2(b) authorizes a two-level reduction to a defendant's
sentencing base offense level if the court finds the defendant was a minor
participant in the criminal activity. U.S.S.G. § 3B1.2(b). A minor participant is
"any participant who is less culpable than most other participants" in the crime.
U.S.S.G. § 3B1.2, comment. (n.3). The commentary makes clear this section
applies to a defendant who is "substantially less culpable than the average
participant." U.S.S.G. § 3B1.2, comment. (backg'd.). The defendant carries the
burden of establishing his minor participation by a preponderance of the evidence.
United States v. Ayers, 84 F.3d 382, 383 (10th Cir. 1996). Since the court's
determination of a defendant's role is "heavily dependent upon the facts of the
particular case," U.S.S.G. § 3B1.2, comment. (backg'd.), we will not disturb the
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court's determination unless it is clearly erroneous. Ayers, 84 F.3d at 383.
Mr. Lira objected to the denial of a two-level reduction under U.S.S.G.
§ 3B1.2 by stating the evidence at trial indicated the "primary responsible person
was Raymond Tobias" and all of Mr. Lira's activities "were at [Mr.] Tobias'
direction." Although Mr. Lira failed to specify facts supporting his claim at
sentencing, he now relies on evidence that he was not present at all of the drug
transactions involving his co-defendant, Mr. Carlos Tobias, and Mr. Videll
Underwood, an undercover Drug Enforcement Agent, during the period of the
conspiracy. In addition, Mr. Lira relies on the fact that when he answered the
phone, he always passed the phone to Mr. Tobias for discussions involving drug
sales. Furthermore, Mr. Lira relies on Mr. Underwood's testimony the primary
focus of investigation was Mr. Tobias. Based on this evidence, Mr. Lira claims at
most, he was a follower of Mr. Tobias.
Mr. Lira failed to meet his burden of demonstrating he was a minor
participant. The district court's conclusion Mr. Lira was "equally culpable" as his
co-defendant, Mr. Carlos Tobias, and probably as culpable as his other co-
defendant, Mr. Gerardo Zuniga, was not clearly erroneous. Relying on evidence
presented at trial, the court found Mr. Lira was present for and participated in
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most of the drug transactions underlying his conspiracy conviction. 1 He was
present and participated in the sale of one-half ounce of black tar heroin to Mr.
Underwood on December 20, 1996, during the period of the conspiracy. At that
sale, it was Mr. Lira who removed the heroin from his pocket to give to Mr.
Underwood. Mr. Lira was also present on December 30, 1996, when he and Mr.
Tobias met with Mr. Underwood again so Mr. Underwood could pay the
remaining cash balance for the December 20 transaction. Mr. Lira was present
and participated in the sale of a one-half kilogram of cocaine on January 31,
1997, with Mr. Tobias and Mr. Underwood. In addition, Mr. Lira participated in
negotiations for future drug sales. Mr. Lira and Mr. Tobias also shared the same
residence from which they negotiated and carried out drug sales together.
Consequently, the district court's conclusion "[t]here is nothing in the evidence
that would indicate he is entitled to a minor or minimal participant role" is not
clearly erroneous. Mr. Lira clearly played an important function in Mr. Tobias'
drug distribution network which conflicts with his alleged minor participation.
See Ayers, 84 F.3d at 384 (holding defendant's significant role in a drug
distribution network prohibited an offense reduction under U.S.S.G. § 3B1.2). In
addition, Mr. Lira's involvement in multiple distributions of controlled substances
1
Mr. Lira attended two of four drug sales supporting Mr. Lira's drug
conspiracy charge.
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weighs against an offense level reduction under § 3B1.2. United States v.
Santistevan, 39 F.3d 250, 254 (10th Cir. 1994).
Accordingly, the district court's decision is AFFIRMED.
Entered for the Court
WADE BRORBY
United States Circuit Judge
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