The Hono rable Cynthia H. Hall, United States Circuit Judge for the Ninth 1 Circuit, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-3139

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Jesus Correa, * * Appellant. *

___________ Submitted: December 15, 1998 Filed: January 25, 1999

___________ Before MCMILLIAN, LAY and HALL, Circuit Judges. 1

___________ LAY, Circuit Judge. Jesus Correa was convicted of one count of distribution of methamphetamine, in vi olation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of conspiracyThe 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. -2- to distribute methamphetamine, in violation of 21 U.S.C. § 846. The district court 2 sentenced Correa to 41 months and five years supervised rel ease. Correa contends (1) that t he district court should have given him a four-level reduction for minima l parti cipation 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 hi s conviction. We affirm.
I. FACTS This appeal arise s from a series of eight drug transactions beginning on May 1, 1997. Jesus Correa was allegedly i nvolved in three of these transactions. On May 6, 3 1997, Jesus Correa gave his acquaintance, Israe l Lizarraga-Gil, a ride to a lumber yard in Hopkins, Minnesota. Both Correa and Liz arraga migrated to the Hopkins area from the same town in Mexico and spoke very little English. Once at the lumberyard , Lizar raga got out of the car and engaged in a drug transaction with an undercove r police officer while Correa waited in the car.
On May 9, 1997, the officer arranged to meet Lizarraga again in order t o purchase $200worth of methamphetamine. This time Lizarraga drove his own car to the lumberyar d. When the officer asked for the drugs, Lizarraga said he had to g o retrieve them. Lizarraga returned with Correa in the passeng er 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-3-

the officer a clear baggie containing methamphetamine. Because the there was more met h in the baggie than the one eighth of an ounce they had discussed, the office r hand ed it back stating that he did not have more than $200 with him. The office r testif iedthat at this point Correa and Lizarraga talked briefly between themselves i n Spanish. T hen they told the officer in English that they would take the $200 and h e could pay t hem the rest of the money later. The officer could not recall what wa s spe cifically said by Correa. The officer also testified that Lizarraga gave him a ne w pager number, stating it was the number to contact Correa. Alth oughthe transaction was videotaped, there was no audiotape of the deal

. The videotapes showed Lizarraga and Correa talking for a few se conds after the officer informed them of his lack of funds. The videotape also shows both Lizarraga an d Correa communicating with the officer.
Police conducted a drug bust of the lumberyard on July 10, 1998. Althoug h Correa was not present during this drug bust, the police searched his house. The y found a digital scale, whi ch 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 wa s charged with four counts of aiding or abetting the distribution o f methamph etamine and one count of conspiracy. After a jury trial, he was convicte d 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 sen tencing, the court refused to grant a four-level reduction for minima l 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-4-

Althou gh Correa was granted a two-level reduction for a minor role, he argues tha t he was entitled to a four-level role reduction for minimal participation unde r Unit ed States Sentencing Guidelines section 3B1.2. We have held that “th e dete rminationunder § 3B1.2 of whether a defendant is a minor or a minima l participant in an offense may be reversed if clearly erroneous.” United States v

. Wes terman , 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 no t clearly erroneous.
The United States Sentencing Guidelines define a minor participant as “an y participant who is less culp able than most other participants, but whose role could not be described as minimal.” United State s Sentencing Commission, Guidelines Manual , §3B 1.2, comment (n.3)(Nov. 1998). In describing minimal participation, th e commentary provides:
It is intended to cover defendants who are plainly among the leas t culpable of

those involved in the conduct of a group. Under thi s provision, the defendant’s lack of knowledge or understanding of th e scope and structure of the enterprise and of the activities of others i s indicative of a role as a minimal participant.
U.S.S.G. § 3B1.2, comment (n.1). The guidelines also provide that “the downwar d adjustment for a minimal participant will be used infrequently.” Id . at n.2. C o rrea contends that he was entitled to the reduction for minimal participation becaus e he was merely a courier. Correa further contends that he lacked th e 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 th e minor participant reduction. This finding is not clear error. It is undisputed that Correa-5-

was present both on May 6, 1997, and May 9, 1997. Also he did more than simpl y hand over the drugs on May 9; he helped negotiate the price. B. Downward Departure
Correa co ntends that the district court should have considered a downwar d departure from the sentencingguidelines for lack of knowledge of and control over the quantit y and purity of the narcotics. It is well-established by this court that we do not h a ve 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 dis trict court determined it lacke d 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 th e defense in favor of a departure and did not find “the type of extraordinary circumstances . . . which woul d warrant granting the motion for a downward departure in this case.” There is no indication that the district court determined that it lacke d 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 it s authority to depart but simply chose n ot 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 fo r distributionand conspiracy. The standard of review for a sufficiency of the evidence claim is whet

her 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 th e verdict, there is sufficient e vidence 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-6-

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 mone y later. Correa was also present on May 6, 1997, even though he did not participat e actively on that date.
Cor reaargues that the evidence is insufficient because he did not have th e specifi c intent necessary to support his conviction. He argues that intent cannot b e pr oven simply because he handed over the drugs. We are unpersuaded by thi s argument. Co rrea did more than hand over the drugs. According to the undercove r 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.