United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-4004

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United States of America, *

*

Appellee, *

*

v. *

*

Teodoro Mercado, also known as *

Robert Balbuena, *

*

Appellant. *

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Appeals from the United States

No. 02-4006 District Court for the

___________ District of Nebraska.

United States of America, * [UNPUBLISHED]

*

Appellee, *

*

v. *

*

Daniel Ramos Espinoza, *

*

Appellant. *

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Submitted: May 13, 2003

Filed: May 22, 2003 

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1

The Honorable John F. Nangle, United States District Judge for the Eastern

District of Missouri, sitting by designation.

2

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska, adopting the Report and Recommendation of United States Magistrate

Judge David L. Piester.

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Before WOLLMAN and BEAM, Circuit Judges, and NANGLE,1

 District Judge.

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PER CURIAM.

Teodoro Mercado ("Mercado") and Daniel Ramos Espinoza ("Espinoza") were

charged in a one-count indictment with possession with intent to distribute more than

500 grams of cocaine and 100 kilograms of marijuana, in violation of 21 U.S.C. §

841(a)(1) and (b)(1). Mercado pleaded guilty, and the district court2

 sentenced him

to 97 months' imprisonment and five years of supervised release. After a jury trial,

Espinoza was sentenced to 135 months' imprisonment and five years of supervised

release. Espinoza appeals his conviction and both Mercado and Espinoza appeal their

sentences.

Mercado and Espinoza were in a U-Haul truck on Interstate 80 in Nebraska

when a Nebraska State Patrol officer stopped the truck for following another car too

closely. After receiving consent from both Mercado and Espinoza to search the truck,

the officer found 3.36 kilograms of cocaine and 191.4 kilograms of marijuana hidden

in the storage compartment. Mercado pleaded guilty to possession of cocaine and

marijuana with intent to distribute. Espinoza pleaded not guilty and went to trial.

Mercado argues that the district court erred in failing to decrease his offense

level by three levels for acceptance of responsibility, pursuant to United States

Sentencing Guidelines Manual § 3E1.1 ("U.S.S.G."). We review a denial of an

acceptance of responsibility reduction for clear error. United States v. Ervasti, 201
3

"[A] defendant who falsely denies, or frivolously contests, relevant conduct

that the court determines to be true has acted in a manner inconsistent with

acceptance of responsibility." U.S.S.G. § 3E1.1, cmt. n.1(a).

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F.3d 1029, 1043 (8th Cir. 2000). "The sentencing judge is in a unique position to

evaluate a defendant's acceptance of responsibility. For this reason, the determination

of the sentencing judge is entitled to great deference on review." U.S.S.G. § 3E1.1,

cmt. n.5. After carefully reviewing the record, we find that the district court did not

clearly err when it refused to grant Mercado an acceptance of responsibility reduction.

Mercado is not entitled to this reduction as a matter of right just because he pleaded

guilty, U.S.S.G. § 3E1.1, cmt. n.3, and questions remained about the truthfulness of

Mercado's testimony at Espinoza's trial.3

Espinoza claims that the evidence presented at trial was insufficient to show

that he knowingly and intentionally possessed marijuana and cocaine with the intent

to distribute and that the district court erred in denying his request for a four-level

reduction, because he was a minor participant in the criminal activity, under U.S.S.G.

§ 3B1.2. To succeed on his sufficiency of the evidence claim, Espinoza has a strict

standard to pass – he must show that no reasonable trier of fact could have found him

guilty beyond a reasonable doubt, based on the evidence adduced at trial. United

States v. Francis, No. 02-2006, slip op. at 6 (8th Cir. Apr. 28, 2003). In determining

the sufficiency of the evidence, we review the evidence in the light most favorable

to the government. Id. We hold that Espinoza has failed to meet the standard set

forth in Francis. The evidence supports the jury's finding that Espinoza knowingly

and intentionally possessed the drugs. 

Espinoza's minor participant argument fails as well. We review the district

court's refusal to grant a minor-participant reduction for clear error. United States v.

Correa, 167 F.3d 414, 416 (8th Cir. 1999). The district court did not clearly err in

finding Espinoza as culpable as Mercado.

Accordingly, we affirm.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.