* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

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

### AUG 7 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEANE HOUSTON, Defendant-Appellant. No. 99-4216 (D.C. No. 99-CR-277-W) (D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE , Circuit Judges.

Defendant-Appellant Deane Houston (“Houston”) was c harged by indictment with one count of possession of a firear m by a restricted person in violation of 18 U.S.C. § 922(g) and one count of po ssession of a stolen firearm in violation of 18 U.S.C. § 922 (j). Houston pled gui lty to the charge of possession of a firearm by a restricted person, and the second count was dismissed. Houston- 2 -

was sentenced to 57-months imprisonment, based on a n adjusted offense level of
19. The indictment and conviction in this case arose fr om the following circumstances. Houston was involved in a traffic a ccident on May 24, 1999. Salt Lake City police requested Houston’s driver’s licen se. Houston stated that she did not have one in her possession but that her nam e was Dawn Cage. The police ran a records check and found an outstanding arrestwarrant for Dawn Cage. The police arrested Houston (a.k.a Dawn Cage), and subs equently searched her person. The police found a single .45caliber handg un bullet in her pocket. She then told the police that she had a gun in her car. The police recovered a .45- caliber handgun from under the seat of Houston’s ca r, with one round in it. Police ran a records check on the gun and determine d that it had been stolen from a Salt Lake City pawn shop a few weeks earlier. Ho uston admitted to police that she knew that the gun was stolen and that she had t wo prior convictions for drug trafficking in the state of Ohio. Houston also sta ted that she was being paid $200 to act as a courier-delivering the gun from one par ty to another. On appeal, Houston only alleges one claim of error. She argues that the district court erred in refusing to grant a reducti on in her base offense level pursuant to U.S.S.G. § 3B1.2. Section 3B1.2 allows a four-point reduction where- 3 -

the defendant was a minimal participant in the offe nse, and a two-point reduction where the defendant was a minor participant in the offense. Houston objected to the PSR on the ground that it f ailed to recommend such a reduction. The district court rejected Hous ton’s argument during the sentencing hearing. Although the district court be lieved that Houston had been asked to deliver the gun by someone else, the court explained that possession of a firearm by a restricted person is a “status crime” and that the “point of the law . . . is to keep someone who has been convicted of a felo ny from possessing a gun for any reason.” (See Aplt. App. Vol. II, at 5.) We review a trial court’s determination that someon e is not a minimal participant as a finding of fact that is reviewed f or clear error. See United States v. Onheiber , 173 F.3d 1254, 1258 (10th Cir. 1999). In this ca se, however, the district court concluded as a matter of law that Ho uston could not have been a minor or minimal participant. We therefore review this interpretation of the sentencing guidelines de novo. See United States v. Lacey , 86 F.3d 956, 962 (10th Cir.1996). We agree with the district court that Houston is not entitled to a downward departure pursuant to § 3B1.2, although ba sed on slightly different reasoning. Houston points to a number of the application notes to § 3B1.2 in support of her contention that she was merely a minor or mi nimal participant because she- 4 -

was acting as a courier. Houston particularly emph asizes application note (2), which provides that a downward departure might be appropriate where the defendant “was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” We acknowledge that the application notes direct th e sentencing court to consider the role that the defendant has played in the concerted activity. This aspect of the application notes is inapposite in th is case, however. In assessing whether a defendant was a minor participant in the offense for which he or she has been convicted, our inquiry necessarily must fo cus on the nature of that offense. Although it may be true that working as a courier by delivering a stolen handgun from one party to another involves concerte d activity, and that Houston’s role in the overall transaction was fairly limited, these facts have no bearing on whether Houston could be considered to have played a minimal or minor role in the offense to which Houston pled guilt: possession of a firearm by a restricted person. Houston can be considered nothing other th an the primary actor for that offense because she, as a felon, is the restricted person to which the statute is directed. We AFFIRM the sentence imposed by the district court. ENTERED FOR THE COURT David M. Ebel Circuit Judge