* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 12 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. OSWALDO RAMIREZ BARRON,

Defendant - Appellant. No. 03-2106 (D. Ct. No. CR-01-396-MV)

(D. N.M.)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, LUCERO , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. Defendant-Appellant Oswaldo Ramirez Barron pleaded guilty to one count of possessing with intent to distribute more than f ifty grams of methamphetamine- 2 -

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1 )(A)(viii). Mr. Barron contends that the District Court erred in failing t o grant him a downward adjustment due to his minor role in the overall dru g trafficking endeavor. See U.S. Sentencing Guidelines Manual § 3B1.2 (2002) (“ U.S.S.G.”). We take jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U. S.C. § 1291 and AFFIRM. I. BACKGROUND In March 2001, Mr. Barron left Calexico, Californiafor Atlanta, Georgia in a tractor-trailer, acting as translator for the dri ver, Mr. Lobatos. The truck contained 123.2 kilograms of cocaine and 2.431 kilo grams of methamphetamine. Mr. Sierra, the presumed ring-leader of the operati on, followed the truck in a separate car. Along the way, they entered the New Mexico Port of Entry in Gallup, New Mexico. Anticipating that law enforcem ent officers would discover the drugs, Mr. Barron fled on foot. Subsequently, the officers arrested Mr. Lobatos. Mr. Barron was arrested a day later. App arently, Mr. Sierra remains at large and has not been charged regarding this incid ent. Mr. Barron pleaded guilty to possessing methamphetamine with intent to distribute, in exchange for the dropping of all oth er charges against him. Although Mr. Lobatos received a minor-participant r eduction, the presentencing report (“PSR”) did not recommend granting Mr. Barro n a similar reduction pursuant to U.S.S.G. § 3B1.2. Mr. Barron’s PSR jus tified this differential- 3 -

treatment because he “made the arrangements to tran sport drugs from Calexico, California to Atlanta, Georgia,” while Mr. Lobatos did not “direct[] any other participants.” Mr. Barron filed an objection to th e PSR, which the district court overruled. Defense counsel presented the thrust of this object ion during the sentencing hearing: [W]e’re contending that [Mr. Barron] was a minor participant. . . . There was another individual, . . . Jose Luis Sierr a, who is actually the overseer, or sort of the foreman . . . of this particular trip . . . . It’s our contention that [Mr. Barron] was working at the order of Mr. Jose Luis Sierra.
Mr. Barron attempted to make this argument by proff er. The District Court, in rejecting this attempt, noted: “This is too impo rtant. I don’t want your proffer, and I won’t accept that, and I don’t have reports t o the effect of what you’re saying. So if you want to put [Mr. Barron] on the stand, that’s fine.” Mr. Barron proceeded to testify that he was working under the direction of Mr. Sierra. Mr. Barron’s testimony was the only evidence submitted of his minor role. The District Court discounted this testimony, stating: “I do not find your testimony truthful.” Instead, the District Court credited th e facts as stated in the PSR as accurate. Mr. Barron filed a timely notice of appe al. II. STANDARD OF REVIEW On sentencing appeals, we review the sentencing court’s factual findings- 4 -

“for clear error and its legal conclusions de novo.” United States v. Shumway , 112 F.3d 1413, 1426 (10th Cir. 1997). We interpret the Sentencing Guidelines “as if they were a statute,” United States v. Plotts , 347 F.3d 873, 876 (10th Cir. 1998) (quotations omitted), and the commentary to the Gui delines as “authoritative unless it violates the Constitution or a federal st atute, or is inconsistent with, or a plainly erroneous reading of” the Guidelines, Stinson v. United States , 508 U.S. 36, 38 (1993). The defendant has the burden of pro ving his minor or minimal participation. United States v. Harfst , 168 F.3d 398, 401-02 (10th Cir. 1999). III. DISCUSSION On appeal, Mr. Barron argues that the District Court “erred as a matter of law in failing to consider Mr. Barron’s role in the context of other participants [i.e., Mr. Sierra] in the relevant conduct for whic h he was held accountable at sentencing.” We disagree. U.S.S.G. § 3B1.2 instructs courts to reduce a defen dant’s sentence if “the defendant was a minimal [or minor] participant in any criminal activity.” U.S.S.G. § 3B1.2(a)-(b). According to the commentary, “[t]his guideline is not applicable unless more than one participant was inv olved in the offense,” U.S.S.G. § 3B1.2, Application Note 2, and it provid es a reduction only for “a defendant who plays a part in committing the offens e that makes him substantially less culpable than the average participant[,]” U.S. S.G. § 3B1.2, Application Note- 5 -

3(A). The court may compare the defendant’s conduc t to that of a codefendant or that of an uncharged person who played a role in the criminal endeavor. See U.S.S.G. § 3B1.2, Application Note 3(A); U.S.S.G. S upplement to Appendix C, Amendment 635 (2001) (amending U.S.S.G. § 3B1.2, Ap plication Note 3(A)). Accordingly, we have held that the minor-participant inquiry must “focus upon the defendant’s knowledge or lack thereof conc erning the scope and structure of the enterprise and of the activities o f others involved in the offense.” United States v. Calderon-Porras , 911 F.2d 421, 423 (10th Cir. 1990). Given the nature of this focus, “[t]he determination whether to apply [U.S.S.G. § 3B1.2] . . . involves a determination that is heavily dependant upon the facts of the particular case. . . . [T]he court, in weighing the totality o f the circumstances, is not required to find, based solely on the defendant’s b are assertion, that such a role adjustment is warranted.” U.S.S.G. § 3B1.2, Applic ation Note 3(C). The record belies Mr. Barron’s assertion that the D istrict Court did not consider whether Mr. Barron’s role was minor compar ed to that of Mr. Sierra, as it is replete with in-court testimony regarding Mr. Barron’s subservient role in relation to Mr. Sierra. The following questions as ked of Mr. Barron by his counsel are indicative: Q. Who was Sierra, and what did he do? A. Sierra was in charge of the operation. He had the contacts in Los Angeles to receive the drugs, and had the conta cts in Atlanta to deliver them.- 6 -

Q. Did you know the contacts in California? A. No. Q. Did you know the contacts in Atlanta? A. No, I didn’t. Q. Okay. Who were you working for during this partic ular - - A. Jose Luis Sierra. Q. You were working by his orders? A. Yes.

. . . . Q. - - would it be fair to say that you were function ing as an interpreter?

. . . . A. Yes. Yes.

. . . . Q. And who were you paid by? A. Jose Luis [Sierra]. A similar discussion, albeit from a different persp ective, occurred during the government’s cross-examination. In the face of this record, Mr. Barron asserts that“the [district] court focused on the slight differences between [Mr. Barr on’s] role and that of his codefendant, Lobatos, and did not consider the signif icant difference between Mr. Barron’s role and that of Sierra.” In so doing, Mr . Barron claims that the District Court failed to conform to the dictates of U.S.S.G. § 3B1.2, Application Note 3(A). See id. (a court “is not precluded” from considering an un charged person who played a role in the criminal endeavor when det ermining whether the defendant played a minor role). This contention misstates the record. As the recor d demonstrates, the District Court heard live testimony regarding the r espective roles of Messrs.- 7 -

Barron and Sierra. The only reasonable conclusion one can reach from the record is that the District Court considered the distincti ons between Messrs. Barron and Sierra, but did not find Mr. Barron’s testimony cre dible. In a nearly identical U.S.S.G. § 3B1.2 case, we hel d: The only evidence that [the defendant] was not hims elf involved in any of these [non-minor] roles is the appellant’s o wn testimony, which the district court could quite reasonably hav e found not credible. . . .Where there are two permissible view s of the evidence, the factfinder’s choice between them cannot be clearly erroneous. A defendant’s own testimony that others were more heavily involved in a criminal scheme may not suffice to prove his mino r or minimal participation, even if uncontradicted by other evidence. United States v. Salazar-Samaniega , 361 F.3d 1271, 1278 (10th Cir. 2004) (internal citations and quotations omitted). As Salazar-Samaniega makes clear, the District Court need not have foun d Mr. Barron’s testimony credible; and, absent extrao rdinary facts not found in this record, we will not second-guess such a finding by the District Court. See United States v. Onheiber , 173 F.3d 1254, 1258 (10th Cir. 1999) (holding that the defendant’s own testimony that he was “merely a mid dleman in the transaction, hired to bring the drugs to another contact, and th at he had limited knowledge of and control over the transaction” was insufficient to prove that he was a minor or minimal participant). III. CONCLUSION Because the record demonstrates that the District C ourt heard testimony of- 8 -

Mr. Barron’s role in relation to that of Mr. Sierra , but found it untruthful, we AFFIRM.

ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge