* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### OCT 29 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MANUEL J. HERNANDEZ, Defendant - Appellant. No. 02-3069 D.C. No. 01-CR-40088-02-SAC

(D. Kansas)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Defendant, Manuel J. Hernandez, and a co-defendant, James Raymond Harris, were charged in a two-count indictment with robbery of a credit union in2 -2- violation of 18 U.S.C. §§ 2 and 2113(a) & (d), and with use of a firearm during the commission of a federal crime of violence in vi olation 18 U.S.C. §§ 2 and 924(c). Pursuant to a plea agreement, Hernandez pl eaded guilty to the count of robbery in violation of 18 U.S.C. § 2113(d). In ex change for his guilty plea, the government dismissed the remaining count in the ind ictment. The district court accepted Hernandez’ plea and sentenced him to 57 mo nths’ imprisonment and three years’ supervised release with special condit ions of supervision. Hernandez appeals his sentence arguing that the district court clearly erred in failing to find he was a minor participant in the robbery and in re fusing to reduce his base offense level under U.S.S.G. § 3B1.2. Hernandez’ counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), wherein counsel advises this courtthat Hernandez’ appeal is wholly frivolous. Accordingly, counsel has also fi led a motion to withdraw. Hernandez has been given notice of the Anders brief and counsel’s motion to withdraw. Hernandez has failed to respond to this notice. The district court has the discretion under § 3B1.2 to grant a defendant a two-level reduction in base offense level if it fin ds that the defendant was a minor participant in the charged offense. U.S.S.G. § 3B1 .2; United States v. Santistevan , 39 F.3d 250, 254 (10th Cir. 1994). The defendan t has the burden to establish, by a preponderance of the evidence, thathe is entitled to a § 3B1.23 -3- reduction. Santistevan , 39 F.3d at 254. “A trial court’s determination a s to whether a defendant was a minimal or minor particip ant is a factual finding that we review only for clear error.” United States v. Lockhart , 37 F.3d 1451, 1455 (10th Cir. 1994). Hernandez objected to the Presentence Investigation Report (“PSR”) arguing that a two-level reduction in his base offe nse level was appropriate under § 3B1.2. The district court addressed Hernandez’ o bjection at the sentencing hearing. Hernandez’ counsel stated that Hernandez would rely on the PSR for the factual basis of his argument. Hernandez himself a lso declined to present any additional evidence regarding his participation in the robbery. Using facts set forth in the PSR, the district court found that Her nandez “drove Harris to the credit union, supplied Harris with a gun, and went to a predetermined location to assist Harris in fleeing from the robbery.” The di strict court found that under these circumstances, Hernandez was not a minor part icipant in the robbery and concluded that a reduction in base offense level un der § 3B1.2 was not warranted. Hernandez does not dispute the district court’s fin dings regarding his participation in the robbery. He does, however, ar gue that because he did not enter the credit union, retrieve the money, brandis h the gun, or threaten credit union employees, the district court was required to find him a minor participant under § 3B1.2. A defendant, however, is not entitl ed to a base offense level4 -4- reduction under § 3B1.2 merely because he was comparatively less culpable than his co-defendant. Lockhart , 37 F.3d at 1455; United States v. Caruth , 930 F.2d 811, 815 (10th Cir. 1991). Rather, the defendant m ust be “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2, cmt. n.3(A). The district court’s determination that Hernandez w as not a minor participant is supported by substantial evidence an d is not clearly erroneous. Consequently, we ascertain no error in the districtcourt’s conclusion not to grant Hernandez a base offense level reduction under § 3B 1.2. Upon review of the record, this court concludes that no non-frivolous grounds for appeal exist. The district court’s sentence is affirmed and counsel’s motion to withdraw is granted

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge