*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The 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

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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
-2-

Mr. Vicente Lira appeals his sentence of seventy months imprisonment for

conspiracy to distribute heroin and cocaine, and possession 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 denying Mr. Lira a two-level

reduction to his base offense level for his role in the 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 to a defendant's

sentencing base offense level if the court finds the defendant was a minor

participant in the criminal activity. U.S.S.G. § 3B1.2(b). A minor participant is

"any participant who is less culpable than most other participants" in the crime. 

U.S.S.G. § 3B1.2, comment. (n.3). The commentary makes clear this section

applies to a defendant who is "substantially less culpable than the average

participant." U.S.S.G. § 3B1.2, comment. (backg'd.). The defendant carries the

burden of establishing his minor participation by a preponderance of the evidence. 

United States v. Ayers, 84 F.3d 382, 383 (10th Cir. 1996). Since the court's

determination of a defendant's role is "heavily dependent 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 erroneous. Ayers, 84 F.3d at 383.

Mr. Lira objected to the denial of a two-level reduction 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 activities "were at [Mr.] Tobias'

direction." Although Mr. Lira failed to specify facts supporting his claim at

sentencing, he now relies on evidence that he was not present at all of the drug

transactions involving his co-defendant, Mr. Carlos Tobias, and Mr. Videll

Underwood, an undercover Drug Enforcement Agent, during the period of the

conspiracy. In addition, Mr. Lira relies on the fact that when he answered the

phone, he always passed the phone to Mr. Tobias for discussions involving drug

sales. Furthermore, Mr. Lira relies on Mr. Underwood's testimony the primary

focus of investigation was Mr. Tobias. Based on this 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. Lira was "equally culpable" as his

co-defendant, Mr. Carlos Tobias, and probably as culpable as his other codefendant, Mr. Gerardo Zuniga, was not clearly erroneous. Relying on evidence

presented at trial, the court found Mr. Lira was present for and participated in
1

 Mr. Lira attended two of four drug sales supporting Mr. Lira's drug

conspiracy charge.

-4-

most of the drug transactions underlying his conspiracy conviction.1 He was

present and participated in the sale of one-half ounce of black tar heroin to Mr.

Underwood on December 20, 1996, during the period of the conspiracy. At that

sale, it was Mr. Lira who removed the heroin from his pocket to give to Mr.

Underwood. Mr. Lira was also present on December 30, 1996, when he and Mr.

Tobias met with Mr. Underwood again so Mr. Underwood could pay the

remaining cash balance for the December 20 transaction. 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 addition, Mr. Lira participated in

negotiations for future drug sales. Mr. Lira and Mr. Tobias also shared the same

residence from which they negotiated and carried out drug sales together. 

Consequently, the district court's conclusion "[t]here is nothing in the evidence

that would indicate he is entitled to a minor or minimal participant role" is not

clearly erroneous. Mr. Lira clearly played an important 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 role in a drug

distribution network prohibited an offense reduction under U.S.S.G. § 3B1.2). In

addition, Mr. Lira's involvement in multiple distributions of controlled substances
-5-

weighs against an offense level reduction under § 3B1.2. 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