This order and judgment is not bindin g precedent, except under the *

doctrine s of law of the c a se , re s judic a ta , and colla te ra l e stoppe l. It may be

c ited, howeve r, for its pe rsua sive va lue con sistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

January 29, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT O F APPEALS

TEN TH C I RC U I T

UNITED STA TES OF AM ER IC A,

Plaintiff-Appellee,

v. No. 05-4318

EZEQUIEL ROBLES ESQ U IVEL,

De f endant-Appe llant.

(D.C . No . 04-C R-5 62 -TS)

(D. Utah)

ORDER AND JUDGM E NT

*

Before BR ISCOE, BA LDOCK, and HA RTZ, Circuit Judg es.

Ez equiel Robles Esq uive l (Esq uive l) pled guilty to poss e ssion with

intent to distribute 500 grams or more of methamphetamine in violation of

21 U.S.C. § 841 (a)(1). Esquivel soug ht a two-level redu ction in offense

level pursuant to § 3B1.2 of the Sentencing Guidelines (Guidelines) alleging

he was a minor participant in the crime. The district court denied his motion

and Esq uive l ap pe a ls from tha t denial. We exe rc ise jurisdiction pursu ant to
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28 U.S.C . § 1291 and a ffirm .

I. Factual Background

Esquivel was stopped while driving on I-70 for an equipment

violation. As the officer spoke with Esquivel, he detected the odor of

marijuana coming from inside the vehicle. A s earch of the vehicle revealed

appro xima te ly 1.3 kilograms of me thamphe tamine . 

During que stioning, Esq uive l sta ted tha t he had picked up the vehicle

at a rest area in Utah and was transporting it to Colorado. Specifically, he

stated a friend by the name of Efrin asked him to travel to Utah, pick up a

vehic le , and drive it to Aurora , Colorado in exchange for $200 and som e

marijuana. Esquivel stated that Efrin had driven him to a rest area in a red

Jeep Cherokee to retrieve the car. Although he did not remember the exact

location of the rest area, he believed it was about forty-five minutes south of

I-70 on I-15. Esquivel stated further that he had no knowledge that drugs

were in the vehicle he retrieved. He also stated that he had transported a

vehicle in this manner once before when he delivered a car from a Colorado

re sidenc e to a me chanic shop whe re the vehic le wa s la te r stripped. 

Offic e rs loc a ted a c e ll phone inside the vehic le Esquive l wa s driving. 

Esquive l denied tha t he owned the phone . Phone re cords confirmed fortyeight calls were made from the cell phone on the day of the stop and that

thes e c alls were mad e to thirteen diffe rent area codes. As officers
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interview ed Esq uive l, the c e ll phone rang. Esq uive l ag re ed to re turn the c a ll

in an attempt to make contact with Efrin. Upon placing a call, he asked for

M anuel, not Efrin. Esquivel later admitted that the name Efrin was

fictitious and admitted further that he was aware that there were drugs in the

vehicle. Officers also confirmed that the vehicle was registered to “Manuel

Torres Juares.” 

After entering his guilty plea , Esq uive l asked the distric t co urt to

reduce his base offense level by two levels becaus e he was a minor

participant in a larger drug distribution scheme. The district court denied

Esq uive l’s motion and senten c ed him to 188 months o f imprisonment.

II. Ana lysis

Esquivel con tend s that the d istrict cou rt erred in denying his request

fo r a § 3B1.2 minor pa rticipan t red uction. We conclud e the district court

did not err becaus e Esquivel failed to carry his burden to establish that he

wa s a minor pa rticipant.

We review for clear error the district court’s refusal to award a

defendant a reduction for minor participant status under § 3B1.2. United

States v. Virgen-Chavarin, 350 F.3d 1122, 1131 (10th Cir. 2003). The

“‘clearly erroneous’ standard requires the appellate court to uphold any

distric t co urt de termina tion tha t f a lls within a broad range of pe rmissible

co nclusions.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400 (19 90);
 “We inte rp re t the Sentenc ing Guide line s a s if they we re a sta tute ,” 1

United States v. Tagore, 158 F.3d 1124, 1128 (10 th Cir. 1998), and the

Commentary to the Guidelines as “authoritative unless [th ey] violate[ ] the

Constitution or a f ede ra l sta tu te, or [ a re ] inconsisten t with, or a plainly

erroneous reading of” the Guidelines, Stinson v. United States, 508 U.S. 36, 38

(19 93).

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see also United States v. Santistevan, 39 F.3d 250, 253-54 (10th Cir. 1994)

(“We will not disturb a district court’s finding of fact unless it is without

factual support in the record, or if after reviewing the evidence we are left

with the definite and firm conviction that a mistake has been made.”)

(interna l quotation marks omitted).

Sec tion 3B1.2 of the Guidelines prov ides a range o f adjustmen ts for a

de f endant who “plays a pa rt in committing the off ense tha t make s h im

substantially less culpable than the average participant.” U.S.S.G. § 3B1.2,

cmt. n.3(A). Specifically, § 3B1.2(b) permits a court to reduce a 1

defendant’s offens e level by two levels if the defendant was a “minor

participant in any criminal activity.” Id. § 3B1.2(b). According to the

commen tary that fo llows, “[t]his guideline is not app licable un less more

than one pa rtic ipant wa s involved in the off ense .” Id . § 3B1.2, cmt. n.2. 

“Pa rticipant,” in turn, is de fined a s “ a pe rso n who is c rimina lly re sp onsible

for the commission of the off ense , but ne ed not have be en convic ted.” Id . §

3B1.2, cmt. n.1. “The de termina tion of a de f endant’s ro le in the off ense is

to be made on the basis of all conduct within the scope of § 1B1.3 (Relevant
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Conduct) . . . and not solely on the basis of elements and acts cited in the

count of convic tion.” Id . Ch. 3, Pt. B, intro. cmt. 

The distric t co urt’s d e c ision of whe the r to apply a minor role

adjustment under § 3B1.2 “is heavily dependent upon the facts of the

particular case.” Id. § 3B1.2, cmt. n.3(C). Significantly, “[a]s with any

other factual issue, the co urt, in weigh ing the totality of the circumstances,

is not required to find, based solely on the defendant’s bare assertion, that

such a role adjustmen t is warran ted.” Id.; see a lso United States v . Salaz arSamaniega, 361 F.3d 1271, 1278 (10th Cir. 2004). We have held that the

minor participant inquiry must “focus upon the defendant’s knowledge or

lack thereof concerning the scope and structure of the enterprise and of the

activities of others involved in the offense.” Salazar-Samaniega, 361 F.3d

a t 1277 (quoting United State s v . Ca lde ron-Porra s, 911 F.2d 421, 423 (10th

Cir.1990)). A defendant bears the burden of proving, by a preponderance of

the evidence, that he is entitled to a reduction under § 3B1.2. VirgenChava rin, 350 F.3d a t 1131. 

Esq uive l asse rts tha t the distric t co urt e rred be c ause it fa iled to

compar e his criminal involvement to that of others. Esquivel contends that

he was a small cog in a large drug conspiracy and he relies heavily upon

unsupported assertions, both his own and thos e which defense counsel

proffered on his behalf at s entencing. Becaus e such self-serving testimony
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is clearly insufficient to meet the burden of establishing entitlement to a

minor role reduction, the district court did not err. See Salazar-Samaniega,

361 F.3d at 12 78 (“A def en dan t’s own testimony that others were more

heavily involved in a criminal scheme may not suffice to prove his minor or

minimal participation, even if uncontradicted by other evidence.”)

M oreove r, Esquive l’s a sse rtions la ck c redibility for o the r r e a sons. 

For example, Esquivel stated that he was unaw are he was transporting drugs,

but later confessed he was aware of his cargo. Also, Esquivel stated that he

was transporting the vehicle for a friend named Efrin, but later conceded

that Efrin was fictitious. Clearly, the district court did not err in finding

Esquive l’s sta tements la cked c redibility and we re insuffic ient to justify a

ro le reduc tion. 

Esquivel’s remaining evidence in support of his minor role argument

is weak. Esquivel asserts that the red Jeep Cherokee which was reported as

following him shows his limited involvement in the crime. Esquivel also

a ss e rts tha t sinc e he owned ne ithe r the vehicle he wa s d riving, nor the c e ll

phone found in the vehicle, he was merely a minor participant. Likewise, he

asserts that the fact that he only had $12 in his possession when he was

a rre sted (money a llegedly provided by M anue l for ga so line ) su pports his

c laim tha t he wa s a minor player. None the less, the import of the se f a c ts is

ambiguous a t be st and we conc lude tha t the distric t co urt did not err in
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finding them insuffic ient to e stablish tha t Esquive l wa s a minor p a rtic ipant. 

See United States v . Heckard, 238 F.3d 1222, 1234 (10 th Cir. 2001) (“Where

there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.”) (internal quotation marks

omitted). Further, as regards the cell phone, Esquivel’s ownership of the

phone appears less significant, when determining his role in the crime, than

his exten sive use of the phone to make nume rous c a lls, inc luding c a lls to

thirteen d ifferent area codes.

Esquivel also argues that the district court erred in concluding that the

quantity of drugs found in the vehicle precluded him from receiving a minor

role adjustment. We disagree. The Commentary to § 3B1.2 establishes that

“ a de f endant who is convicted of a drug tra ffick ing off ense , whose role in

tha t off ense wa s limited to transp orting or storing drugs and who is

accountable under § 1B1.3 only for the quantity of drugs the defendant

personally transported . . . is not precluded from consideration for” a minor

participant reduction. U.S.S.G. § 3B1.2, cmt. n.3(A). At sentencing,

de f ense counse l argued “whe the r it wa s a large quantity or a sma ll quantity

[of drugs transported] is no longer taken into account” when conducting a

minor pa rticipan t inquiry. Appx., Vol. IV, p. 10. The d istrict court

disagre ed with counse l’s cha ra c te riz a tion, sta ting, “Wha t [the Commenta ry]

says is he’s not precluded, but . . . the Court can certainly take [drug
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quantity] into consideration.” Id. Defens e counsel agreed. Becaus e the

district court did not hold that the Guidelines precluded Esquivel from being

conside red for a minor p a rtic ipant reduc tion, it did not e rr in this rega rd . 

Esquivel argues further that the district court overemphasized the

significance of the quantity of drugs found in the vehicle, becaus e drug

quantity is re lev ant to the role r educ tion inquiry only inso f a r a s it re flec ts

know ledge and degre e of culpability. It is true we have expre ssed som e

concern regarding a district court’s heavy reliance upon drug quantity when

addressing a request for a minor role reduction. See United States v.

Caruth, 930 F.2d 811, 816 (10th Cir. 1991) (“We are concerned by the

court’s reference to the quantity of drugs. . . . The quantity of drugs has

already been taken into account in establishing the offense level and taking

the quantity into account once again in deciding upon the applicability of

adjustments for minima l or minor pa rticipa tion risks imposing double

punishment.”). Nonetheless, absent evidence that the district court applied

an e rroneous lega l interpre tation of the Guide line s, we have de c lined to

remand for resentencing. See id. (“However, we are not persuaded that the

district court was proceeding under an erroneous legal interpretation of the

Guidelines when it refused to mak e a fu rther two-po int downward

ad justmen t in [d ef en dan t’s] favor.”).

Here, the district court stated that Esquivel’s role was “viable and
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important” and that he “en gag ed in similar behavior or conduct on at least

one other occasion.” Appx., Vol. IV, p. 11. The district court added that

the se f a c tors, “ combined with the signific ant amount of dru gs involved,”

established Esquivel’s role was not minor. Id. We conclude the district

court noted the amount of drugs seized from the vehicle as an indicator of

Esquive l’s knowledge and degre e of culpability.

Finally, Esquivel claims that the district court erred in finding that he

had en gag ed in at least on e o ther prior relevant drug tran sac tion. Howev er,

even assuming this were true, the resulting error would be harmless in light

of Esquive l’s tota l f a ilure to c a rry his burden to e stablish by a

preponde ranc e of the evidenc e tha t he wa s a minor pa rtic ipant in the c rim e

in question.

Ac cordingly, we AFFIRM the judgment of the distric t co urt.

Entered fo r the Court

M ary Beck Briscoe

Circuit Judge