*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-40838

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ESMERALDA RUIZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-01-CR-144-1

--------------------

December 23, 2002

Before DAVIS, JONES and DENNIS, Circuit Judges.

PER CURIAM:*

Esmeralda Ruiz appeals her sentence following her

guilty-plea conviction for importing marijuana in violation of 21

U.S.C §§ 952(a), 960(a)(1), 960(b)(3) and 18 U.S.C. § 2. Ruiz

argues that the district court erred when it denied a U.S.S.G.

§ 3E1.1 acceptance of responsibility reduction, that the Government

breached the plea agreement when it opposed the acceptance of

responsibility reduction, and that the district court erred when it
No. 01-40838

-2-

denied a minimal participant reduction pursuant to U.S.S.G. § 3B1.2.

To qualify for an acceptance of responsibility reduction

pursuant to U.S.S.G. § 3E1.1, Ruiz must prove that she “clearly

demonstrate[d] acceptance of responsibility for her offense.”

U.S.S.G. § 3E1.1. This court reviews the sentencing court’s

determination of acceptance of responsibility with greater

deference than under the clearly erroneous standard. United States

v. Chapa-Garza, 62 F.3d 118, 122 (5th Cir. 1995). Because Ruiz did

not plead guilty until after a jury was selected, and Ruiz

repeatedly denied the conduct comprising the offense, the district

court did not clearly err in denying Ruiz an acceptance of

responsibility reduction. See United States v. Nguyen, 190 F.3d

656, 659-60 (5th Cir. 1999), and United States v. Diaz, 39 F.3d

568, 570-72 (5th Cir. 1994).

Ruiz also argues that the Government breached the plea

agreement by opposing an acceptance of responsibility reduction.

Ruiz failed to object on this basis at sentencing. Therefore, this

issue is reviewed for plain error. See United States v. Reeves,

255 F.3d 208, 210 (5th Cir. 2001). The plea agreement specified

that the Government agreed to make a recommendation in favor of an

acceptance of responsibility reduction only if Ruiz qualified for

the reduction under the Guidelines. Ruiz has not demonstrated that

she was entitled to an acceptance of responsibility reduction under

the Guidelines. Therefore, Ruiz has not demonstrated “the

underlying facts that establish the breach by a preponderance of
No. 01-40838

-3-

the evidence.” See United States v. Cantu, 185 F.3d 298, 304-05

(5th Cir. 1999) (citation omitted). Ruiz also argues that she

was merely recruited as a courier for a single smuggling

transaction and argues, therefore, that the trial court committed

error in failing to find her a minimal participant and grant a

four-level reduction in her offense level pursuant to U.S.S.G.

§ 3B1.2. This court reviews for clear error the sentencing court’s

determination that a defendant did not play a minor or minimal role

in the offense. United States v. Zuniga, 18 F.3d 1254, 1261 (5th

Cir. 1994). Ruiz does not provide record references that establish

that she was the “least culpable” of those in a group. Because

Ruiz bears the burden of demonstrating that she is a minimal

participant in the offense, and because Ruiz has set forth nothing

more than a self-serving account of her role, which is unsupported

by record evidence, the district court did not clearly err when it

found Ruiz to be a minor participant, but not a minimal

participant, in the offense. See Zuniga, 18 F.3d at 1261, and

United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).

Based on the foregoing, the sentence is AFFIRMED.