The Honorable Cynthia H. Hall, United States Circuit Judge for the Ninth

1

Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3139

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Jesus Correa, *

*

Appellant. *

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Submitted: December 15, 1998

Filed: January 25, 1999

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Before MCMILLIAN, LAY and HALL, Circuit Judges. 1

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LAY, Circuit Judge.

Jesus Correa was convicted of one count of distribution of methamphetamine,

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of conspiracy
The Honorable John R. Tunheim, United States District Judge for the District 2

of Minnesota. 

Correa admits that he was present during the May 6, 1997, and the May 9,

3

1997, transactions. The government also claims that Correa was present during a

transaction on May 20, 1997, but he denies being present on that day.

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to distribute methamphetamine, in violation of 21 U.S.C. § 846. The district court2

sentenced Correa to 41 months and five years supervised release. Correa contends (1)

that the district court should have given him a four-level reduction for minimal

participation instead of the two-level reduction for a minor role, (2) that the court

should have departed downward because Correa was allegedly unaware of the purity

of the methamphetamine, and (3) that the evidence was insufficient to support his

conviction. We affirm.

I. FACTS

This appeal arises from a series of eight drug transactions beginning on May 1,

1997. Jesus Correa was allegedly involved in three of these transactions. On May 6, 3

1997, Jesus Correa gave his acquaintance, Israel Lizarraga-Gil, a ride to a lumber yard

in Hopkins, Minnesota. Both Correa and Lizarraga migrated to the Hopkins area from

the same town in Mexico and spoke very little English. Once at the lumberyard,

Lizarraga got out of the car and engaged in a drug transaction with an undercover

police officer while Correa waited in the car.

On May 9, 1997, the officer arranged to meet Lizarraga again in order to

purchase $200 worth of methamphetamine. This time Lizarraga drove his own car to

the lumberyard. When the officer asked for the drugs, Lizarraga said he had to go

retrieve them. Lizarraga returned with Correa in the passenger seat. When they arrived

at the lumberyard, the officer drove up alongside Lizarraga’s car so that the passenger

door of Lizarraga’s car was next to the officer’s driver’s side window. Correa handed
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the officer a clear baggie containing methamphetamine. Because the there was more

meth in the baggie than the one eighth of an ounce they had discussed, the officer

handed it back stating that he did not have more than $200 with him. The officer

testified that at this point Correa and Lizarraga talked briefly between themselves in

Spanish. Then they told the officer in English that they would take the $200 and he

could pay them the rest of the money later. The officer could not recall what was

specifically said by Correa. The officer also testified that Lizarraga gave him a new

pager number, stating it was the number to contact Correa. 

Although the transaction was videotaped, there was no audiotape of the deal.

The videotapes showed Lizarraga and Correa talking for a few seconds after the officer

informed them of his lack of funds. The videotape also shows both Lizarraga and

Correa communicating with the officer. 

Police conducted a drug bust of the lumberyard on July 10, 1998. Although

Correa was not present during this drug bust, the police searched his house. They

found a digital scale, which was not tested for drug residue. A pager was also seized,

but the number did not match the number used during the drug deals.

Correa was charged with four counts of aiding or abetting the distribution of

methamphetamine and one count of conspiracy. After a jury trial, he was convicted

of one count of aiding and abetting the distribution of meth which occurred on May 9,

1997, and the conspiracy count. The district court sentenced Correa to 41 months.

During sentencing, the court refused to grant a four-level reduction for minimal

participation, but granted a two-level reduction for a minor role. Furthermore, Correa

was only held accountable for the one-half ounce of meth involved in the May 9, 1997,

transaction. 

II. DISCUSSION

A. Sentence Reduction for Minimal Participation
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Although Correa was granted a two-level reduction for a minor role, he argues

that he was entitled to a four-level role reduction for minimal participation under

United States Sentencing Guidelines section 3B1.2. We have held that “the

determination under § 3B1.2 of whether a defendant is a minor or a minimal

participant in an offense may be reversed if clearly erroneous.” United States v.

Westerman, 973 F.2d 1422, 1428 (8th Cir. 1992). The burden is on the defendant to

prove that he warrants the reduction. United States v. Chatman, 119 F.3d 1335, 1341

(8th Cir. 1997), cert. denied, 118 S. Ct. 434 (U.S. Nov. 10, 1997)(No. 97-6393). We

conclude that the district court’s finding that Correa was a minor participant is not

clearly erroneous.

The United States Sentencing Guidelines define a minor participant as “any

participant who is less culpable than most other participants, but whose role could not

be described as minimal.” United States Sentencing Commission, Guidelines Manual,

§3B1.2, comment (n.3)(Nov. 1998). In describing minimal participation, the

commentary provides:

It is intended to cover defendants who are plainly among the least

culpable of those involved in the conduct of a group. Under this

provision, the defendant’s lack of knowledge or understanding of the

scope and structure of the enterprise and of the activities of others is

indicative of a role as a minimal participant. 

U.S.S.G. § 3B1.2, comment (n.1). The guidelines also provide that “the downward

adjustment for a minimal participant will be used infrequently.” Id. at n.2. 

Correa contends that he was entitled to the reduction for minimal participation

because he was merely a courier. Correa further contends that he lacked the

knowledge of the scope and structure of the drug scheme involved. We disagree.

The court found that “[t]here were several incidents in which the jury found that

Mr. Correa was involved” and that those circumstances only qualified him for the

minor participant reduction. This finding is not clear error. It is undisputed that Correa
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was present both on May 6, 1997, and May 9, 1997. Also he did more than simply

hand over the drugs on May 9; he helped negotiate the price. 

B. Downward Departure

Correa contends that the district court should have considered a downward

departure from the sentencing guidelines for lack of knowledge of and control over the

quantity and purity of the narcotics. It is well-established by this court that we do not

have the authority to review the refusal to grant a downward departure, United States

v. Evidente, 894 F.2d 1000,1004-05 (8th Cir. 1990), unless the district court determined

it lacked authority to consider a particular mitigating factor. United States v. Beltran,

122 F.3d 1156, 1158 (8th Cir. 1997)(citation omitted). 

During sentencing, the district court considered the arguments put forth by the

defense in favor of a departure and did not find “the type of extraordinary

circumstances . . . which would warrant granting the motion for a downward departure

in this case.” There is no indication that the district court determined that it lacked

authority to depart. Instead, the court found that Correa’s situation fell within the norm

of cases considered by the Guidelines. Because the district court recognized its

authority to depart but simply chose not to do so, we do not have jurisdiction to review

its decision not to depart.

C. Sufficiency of the Evidence

Finally, Correa contends that the evidence did not support his conviction for

distribution and conspiracy. The standard of review for a sufficiency of the evidence

claim is whether the conviction is supported by substantial evidence. United States v.

Barrett, 74 F.3d 167, 168 (8th Cir. 1996). Viewed in the light most favorable to the

verdict, there is sufficient evidence to convict Correa of the drug deal on May 9, 1997,

and of conspiracy. On May 9, 1997, Correa was videotaped making a hand-to-hand
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sale of drugs to an undercover police officer. The videotape also shows him consulting

with Lizarraga when the officer did not have enough money to pay. The police officer

testified that both Correa and Lizarraga told him he could pay the rest of the money

later. Correa was also present on May 6, 1997, even though he did not participate

actively on that date. 

Correa argues that the evidence is insufficient because he did not have the

specific intent necessary to support his conviction. He argues that intent cannot be

proven simply because he handed over the drugs. We are unpersuaded by this

argument. Correa did more than hand over the drugs. According to the undercover

officer’s testimony, he discussed the price with Lizarraga and relayed that information

to the undercover officer. 

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed.

A true copy.

Attest:

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