In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1473

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CRISANTO MARTINEZ LOPEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07 CR 146—Barbara B. Crabb, Chief Judge.

ARGUED AUGUST 6, 2008—DECIDED SEPTEMBER 19, 2008

Before EASTERBROOK,Chief Judge, and KANNE and WOOD,

Circuit Judges.

KANNE, Circuit Judge. Crisanto Martinez Lopez pleaded

guilty to possessing cocaine with intent to distribute after

Wisconsin police arrested him at the scene of a controlled

buy with over two pounds of cocaine shoved into his

pants. He received a within-guidelines sentence of 108

months’ imprisonment. On appeal he argues that he

should have received a two-level reduction as a minor
2 No. 08-1473

participant. Because the district court did not clearly err

when it rejected Martinez Lopez’s argument, we affirm.

I. HISTORY

In October 2007 an informant told officers with the Dane

County Narcotics and Gang Task Force that a man

known as “Laz” was selling cocaine in the Madison,

Wisconsin, area. The informant explained that he was one

of Laz’s regular customers and had bought cocaine in 1⁄2- to

1-kilogram quantities from Laz on multiple occasions. The

informant also said that he had discovered what he

believed to be Laz’s real identity: Crisanto Martinez Lopez.

Armed with this information, the task-force officers

quickly directed the informant to arrange a controlled

buy from Laz. Martinez Lopez arrived at the prearranged

location and was promptly arrested. The officers recovered 1.1 kilograms of cocaine from the waistband of

his pants and financial documents including Martinez

Lopez’s apartment lease and bank statements from his

car. Following up on this information, the officers

learned that Martinez Lopez still resided in the apartment listed on the lease and that he shared the apartment

with his sister and brother-in-law. After Martinez Lopez’s

sister gave police consent to search the apartment, the

officers recovered 227 grams of crack, 987 grams of heroin,

303 grams of cocaine, three guns hidden throughout the

house with ammunition, six cell phones, and drug paraphernalia including scales, utility knives, baggies, tape,

and other items for packaging drugs.
No. 08-1473 3

Martinez Lopez later confessed that he was recruited

to join the drug operation by his uncle, Lazaro Martinez.

Subsequent investigation revealed that the informant had

been dealing with Lazaro Martinez—not Martinez

Lopez—in setting up the controlled buy and the previous

transactions. As far as the controlled buy, Martinez

Lopez’s known involvement was limited to delivering the

cocaine.

Martinez Lopez pleaded guilty to a one-count indictment

charging him with possessing powder cocaine with

intent to distribute in violation of 21 U.S.C. § 841(a)(1). At

sentencing the district court counted in the overall drug

quantity not only the drugs in Martinez Lopez’s house

and the cocaine he possessed when arrested, but also the

6 1⁄2 to 12 1⁄2 kilograms of cocaine that Martinez Lopez

had delivered to the informant on prior occasions. Based

on that total the court set a base offense level of 34, see

U.S.S.G. § 2D1.1(c)(3), and added two levels for possession

of the guns, see id. § 2D.1(b)(1). The court then granted

Martinez Lopez a three-level decrease for acceptance

of responsibility, see U.S.S.G. § 3E1.1, and a two-level

reduction under the “safety valve,” see id. §§ 5C1.2,

2D1.1(b)(11), but refused to grant a further two-level

reduction under § 3B1.2 as a minor participant. The

court reasoned that Martinez Lopez’s “constant and

continuing involvement with the drugs, storing them,

delivering them, taking care of them, everything that

he did shows that he was a pretty active participant in

this conspiracy and that he wasn’t simply carrying out

very, very minor tasks.” Martinez Lopez’s total offense

level of 31 and criminal history category of I yielded a
4 No. 08-1473

guidelines range of 108 to 135 months’ imprisonment.

Taking into account the factors in 18 U.S.C. § 3553, the

court sentenced Martinez Lopez to the bottom of this

range.

II. DISCUSSION

On appeal Martinez Lopez makes one argument: that the

district court erred when it declined to give him a twolevel reduction as a minor participant. We review for

clear error a district court’s factual determination whether

the defendant was a minor participant. See United States v.

Olivas-Ramirez, 487 F.3d 512, 516 (7th Cir. 2007). For the

reduction to apply, the defendant must prove by a preponderance of the evidence that he was substantially less

culpable than the average participant in the criminal

enterprise. See U.S.S.G. § 3B1.2(b), cmt. 3(A); United States

v. Sorich, 523 F.3d 702, 717 (7th Cir. 2008).

Martinez Lopez argues that he was nothing more than

a drug mule and, in this role, was substantially less

culpable than his uncle, Lazaro Martinez, who allegedly

organized the drug deals. Essentially, Martinez Lopez

argues that because he is less culpable than his uncle, the

minor-participant reduction should apply. Taken to its

logical conclusion, this would mean that in situations

where the offense involves only two people who are not

equally culpable, the less-culpable member would always

be entitled to a minor-participant reduction. This cannot

be. Rather, in situations where criminal activity involves

only two participants (and thus it is impossible to

ascertain the culpability of an “average” participant), the
No. 08-1473 5

key inquiry is the degree of the defendant’s culpability

relative to the other participant’s and the scope of the

criminal enterprise. See U.S.S.G. § 3B1.2, cmt. 3(A); United

States v. Oestreich, 286 F.3d 1026, 1031 (7th Cir. 2002).

Here, even if Martinez Lopez’s uncle was indeed the

mastermind behind the drug sales, Martinez Lopez

failed to show that he was substantially less culpable than

his uncle. As the district court noted, Martinez Lopez

stored the drugs and engaged in several deliveries of

large quantities of cocaine—key activities to the success

of the enterprise given its scope. Therefore the district

court did not clearly err when it held that Martinez Lopez

was not a minor participant. See United States v. Gallardo,

497 F.3d 727, 741 (7th Cir. 2007) (holding that where

defendant handled large quantities of drugs and money,

executed drug sales, and played essential role in conspiracy, district court did not clearly err in denying minorparticipant reduction); United States v. Olivas-Ramirez,

487 F.3d 512, 515 (7th Cir. 2007) (upholding district

court’s finding that defendant who only pretended to be

methamphetamine cook for two days during the conspiracy was not a minor participant because his role was

essential); United States v. Mendoza, 457 F.3d 726, 728-30

(7th Cir. 2006) (upholding finding that defendant, a drug

courier, was not a minor participant because his close

relationship to the leader of the conspiracy was important

to the conspiracy’s success); United States v. Corral, 324

F.3d 866, 874 (7th Cir. 2003) (holding that district court

did not clearly err in finding that defendant who maintained stash house and was entrusted with one large

delivery of cocaine was not eligible for minor participant

reduction).
6 No. 08-1473

III. CONCLUSION

Accordingly, we AFFIRM the judgment of the district

court.

9-19-08