United States v. Frias-Rodriguez

United States Court of Appeals
Fifth Circuit
F I L E D
January 23, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-50555
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARCELO FRIAS-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-02-CR-354-ALL
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Marcelo Frias-Rodriguez appeals his sentence imposed
following his guilty plea conviction for possession with intent
to distribute less than 50 kilograms of marijuana. Frias was
sentenced to a term of imprisonment of 18 months to be followed
by a three-year term of supervised release.
This court must examine the basis of its jurisdiction on its
own motion if necessary. See Mosley v. Cozby, 813 F.2d 659, 660
*
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that this opinion should not be published and is not precedent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.
No. 03-50555
-2-
(5th Cir. 1987). Although Frias’ letter to the court indicated
that he was seeking a reduction of his sentence, the other
statements in his letter clearly evinced his intent to appeal his
sentence. Therefore, the court has jurisdiction to address this
appeal. See Stevens v. Heard, 674 F.2d 320, 322-23 (5th Cir.
1982).
Frias argues that the district court clearly erred in
refusing his request to reduce his offense level for having a
minor role in the offense. He argues that he was merely a
courier transporting a relatively small amount of marijuana and
that his consent to search his vehicle indicated that he was not
a sophisticated drug smuggler.
A defendant's offense level may be decreased by two
levels if the defendant was a minor participant in an offense.
See U.S.S.G. § 3B1.2. A minor participant is one “who is less
culpable than most other participants, but whose role could not
be described as minimal.” U.S.S.G. § 3B1.2, comment. (n.5).
The district court did not clearly err in determining that Frias
failed to show that there were any other participants in the
offense and thus, that Frias failed to show that he was
substantially less culpable than other involved individuals
involved in the offense. United States v. Brown, 54 F.3d 234,
241 (5th Cir. 1995).
AFFIRMED.