*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The 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 

### APR 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.VICENTE LIRA, a/k/a Vicente LiraHidrogo, Defendant-Appellant. No. 97-6279 (D.C. No. 97-CR-32) (W.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Vicente Lira appeals his sentence of seventy mo nths imprisonment for conspiracy to distribute heroin and cocaine, and po ssession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. The sole issue on appeal is whether the district court erred in denyi ng Mr. Lira a two-level reduction to his base offense level for his role inthe conspiracy under United States Sentencing Commission Guidelines Manual ("U. S.S.G.") § 3B1.2(b). We exercise jurisdiction pursuant to 18 U.S.C. § 3742( a) and 28 U.S.C. § 1291, and affirm.

Section 3B1.2(b) authorizes a two-level reduction t o a defendant's sentencing base offense level if the court finds th e defendant was a minor participant in the criminal activity. U.S.S.G. § 3 B1.2(b). A minor participant is "any participant who is less culpable than most oth er participants" in the crime. U.S.S.G. § 3B1.2, comment. (n.3). The commentary m akes clear this section applies to a defendant who is "substantially less c ulpable than the average participant." U.S.S.G. § 3B1.2, comment. (backg'd. ). The defendant carries the burden of establishing his minor participation by apreponderance of the evidence. United States v. Ayers , 84 F.3d 382, 383 (10th Cir. 1996). Since the cou rt's determination of a defendant's role is "heavily dep endent upon the facts of the particular case," U.S.S.G. § 3B1.2, comment. (backg 'd.), we will not disturb the-3-

court's determination unless it is clearly erroneou s. Ayers , 84 F.3d at 383.

Mr. Lira objected to the denial of a two-level redu ction under U.S.S.G. § 3B1.2 by stating the evidence at trial indicated the "primary responsible person was Raymond Tobias" and all of Mr. Lira's activitie s "were at [Mr.] Tobias' direction." Although Mr. Lira failed to specify fa cts supporting his claim at sentencing, he now relies on evidence that he was n ot present at all of the drug transactions involving his co-defendant, Mr. Carlos Tobias, and Mr. Videll Underwood, an undercover Drug Enforcement Agent, du ring the period of the conspiracy. In addition, Mr. Lira relies on the fa ct that when he answered the phone, he always passed the phone to Mr. Tobias fordiscussions involving drug sales. Furthermore, Mr. Lira relies on Mr. Underwo od's testimony the primary focus of investigation was Mr. Tobias. Based on th is evidence, Mr. Lira claims at most, he was a follower of Mr. Tobias.

Mr. Lira failed to meet his burden of demonstrating he was a minor participant. The district court's conclusion Mr. L ira was "equally culpable" as his co-defendant, Mr. Carlos Tobias, and probably as cu lpable as his other codefendant, Mr. Gerardo Zuniga, was not clearly erro neous. Relying on evidence presented at trial, the court found Mr. Lira was pr esent for and participated in1 Mr. Lira attended two of four drug sales supporti ng Mr. Lira's drug

conspiracy charge.

-4- most of the drug transactions underlying his conspi racy conviction. 1 He was present and participated in the sale of one-half ou nce of black tar heroin to Mr. Underwood on December 20, 1996, during the period o f the conspiracy. At that sale, it was Mr. Lira who removed the heroin from h is pocket to give to Mr. Underwood. Mr. Lira was also present on December 3 0, 1996, when he and Mr. Tobias met with Mr. Underwood again so Mr. Underwoo d could pay the remaining cash balance for the December 20 transact ion. Mr. Lira was present and participated in the sale of a one-half kilogram of cocaine on January 31, 1997, with Mr. Tobias and Mr. Underwood. In additi on, Mr. Lira participated in negotiations for future drug sales. Mr. Lira and M r. Tobias also shared the same residence from which they negotiated and carried out drug sales together. Consequently, the district court's conclusion "[t]h ere is nothing in the evidence that would indicate he is entitled to a minor or mi nimal participant role" is not clearly erroneous. Mr. Lira clearly played an impo rtant function in Mr. Tobias' drug distribution network which conflicts with his alleged minor participation. See Ayers , 84 F.3d at 384 (holding defendant's significant r ole in a drug distribution network prohibited an offense reductio n under U.S.S.G. § 3B1.2). In addition, Mr. Lira's involvement in multiple distri butions of controlled substances-5-

weighs against an offense level reduction under § 3 B1.2. United States v. Santistevan , 39 F.3d 250, 254 (10th Cir. 1994).

Accordingly, the district court's decision is AFFIRMED

.

Entered for the Court

WADE BRORBY United States Circuit Judge