United States v. Vega ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41260
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENITO VEGA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-618-ALL
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Benito Vega appeals his sentence following his guilty-plea
conviction for possession of marijuana with intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Vega argues that
he should have received an offense level reduction under Section
3B1.2 of the United States Sentencing Guidelines because he was
substantially less culpable than the average participant in the
offense. For the following reasons, we AFFIRM the district court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
decision.
Section 3B1.2 allows a court to reduce a defendant’s sentence
if he was either a minor or minimal participant in the criminal
activity. The defendant bears the burden of proving that his role
in the offense was minor or minimal,1 and sentence reduction under
this provision is “generally appropriate only if a defendant is
substantially less culpable than the average participant.”2 We
review the district court’s findings on a defendant’s role in an
offense for clear error.3
Based on our review of the record, we conclude that the
district court did not clearly err by refusing to reduce Vega’s
sentence. Although Vega argues that he is less culpable than the
other participants in the drug trafficking scheme because he did
not personally smuggle the marijuana across the river or drive the
vehicle, there is ample evidence in the record that Vega’s role in
the drug trafficking affair was significant. Vega admits, for
example, that he negotiated a fee of approximately $2,000 for the
use of his vehicle to transport the marijuana and, thus, that he
1
United States v. Brown, 7 F.3d 1155, 1160 n.2 (5th Cir.
1993).
2
United States v. Flucas, 99 F.3d 177, 180-81 (5th Cir.
1996); United States v. Franklin, 148 F.3d 451, 461 n.44 (5th Cir.
1998).
3
United States v. Deavours, 219 F.3d 400, 404 (5th Cir. 2000);
United States v. Giraldi, 86 F.3d 1368, 1378 (5th Cir.1996) (“The
standard of review for a reduction for role in the offense is the
clearly erroneous standard.”).
2
knew of and aided the scheme to import and distribute marijuana.
Vega has not shown that the district court’s denial of the
reduction is clearly erroneous. In addition, there is no support
in the record for Vega’s claim that the district court denied him
the reduction simply because no other member of the conspiracy was
prosecuted or because he was a courier.
Vega also contends that 21 U.S.C. § 841 is unconstitutional in
view of Apprendi v. New Jersey.4 Vega acknowledges, however, that
his argument is foreclosed by our decision in United States v.
Slaughter,5 and he seeks merely to preserve the argument for
further review.
The judgment of the district court is AFFIRMED.
4
530 U.S. 466 (2000).
5
238 F.3d 580, 582 (5th Cir. 2000).
3