*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-10058

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ARMANDO CAICEDO SINISTERRA, also known as ARMANDO CAECEDO

SINISTERRA,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

(3:97-CR-250-2-D)

November 5, 1998

Before REYNALDO G. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM*:

Appellant Armando Caicedo Sinisterra pleaded guilty to a onecount indictment charging him and codefendant Jaime Gustavo Garces

with attempting to possess with intent to distribute cocaine.

Sinisterra’s Presentence Report (“PSR”) contained the following

recommendations: Sinisterra’s base offense level was 34, based on

30 kilograms of cocaine. U.S.S.G. 2D1.1(a)(3). Sinisterra was 
2

entitled to a two-level reduction for acceptance of responsibility,

placing his total offense level at 32. U.S.S.G. 3E1.1. Sinisterra

had only one criminal history point for a 1997 DUI conviction, but

because the instant offense was allegedly committed while

Sinisterra was on probation, two more points were to be added,

giving him a Category II criminal history score. U.S.S.G.

4A1.1(d). Sinisterra’s total offense level and criminal history

score resulted in a guideline sentencing range of 135 to 168

months. The offense of conviction carried a minimum prison term of

10 years. 21 U.S.C. § 841(b)(1)(A).

In written objections, Sinisterra argued that he was entitled

to a two-level reduction for having only a “minor role” in the

offense under U.S.S.G. § 3B1.2. With respect to the DUI

conviction, Sinisterra argued that the two extra points should not

be added because he was not in fact on probation at the time of the

instant offense, and that he thus should have a Category I criminal

history. Sinisterra also sought a “safety valve” departure below

the statutory minimum pursuant to U.S.S.G. § 5C1.2. 

The district court overruled Sinisterra’s request for a “minor

role” reduction, leaving his offense level at 32. The district

court further determined that Sinisterra’s Category II criminal

history score overstated Sinisterra’s criminal past, reduced his

score to Category I, and determined that Sinisterra’s objection to

the additional two criminal history points was mooted. This left

Sinisterra’s guideline sentencing range at 121-151 months. Only

because his guideline range remained above the statutory minimum
3

sentence, the district court overruled Sinisterra’s request for a

“safety valve” reduction. However, the district court agreed on

the record that otherwise, Sinisterra satisfied the criteria for

such a reduction. The district court also overruled Sinisterra’s

request for an additional one-point reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1. The district court

sentenced Sinisterra to 121 months in prison and to five years of

supervised release. Sinisterra timely appeals his sentence.

Sinisterra first argues that the district court erred in

denying his request for a “minor role” reduction. Sinisterra

maintains that he was clearly less culpable than his codefendant,

Garces, and at most that he acted only as a “mule” in the drug

transaction. “If the defendant was a minor participant in any

criminal activity,” his offense level should be decreased by two

levels. U.S.S.G. § 3B1.2(b). “[A] minor participant means any

participant who is less culpable than most other participants, but

whose role could not be described as minimal.” Id., Commentary,

Application Note 3. The fact that codefendants were more culpable

does not automatically qualify a defendant for a minor role

reduction. United States v. Atanda, 60 F.3d 196, 198 n.1 (5th Cir.

1995). The defendant’s level of participation must be sufficiently

lower than that of other participants so “that he at best was

peripheral to the advancement of the illicit activity.” United

States v. Tremelling, 43 F.3d 148, 153 (5th Cir. 1995). The

defendant bears the burden of proving that his role in the offense

was “minor.” Atanda, 60 F.3d at 198. A district court’s finding
4

that a defendant is not entitled to a § 3B1.2 reduction is reviewed

for clear error. United States v. Flucas, 99 F.3d 177, 181 (5th

Cir. 1996).

Although Sinisterra’s codefendant Garces appears to have

arranged for the purchase of the 30 kilograms of cocaine,

Sinisterra had a significant role in attempting to buy the cocaine.

Sinisterra drove the van carrying $68,000 for the cocaine; he

personally retrieved the money; he inspected several packages of

the alleged cocaine; and he asked the undercover task force agent

whether all 30 kilograms were present. Based on the foregoing, the

district court did not clearly err in determining that Sinisterra

played more than a “minor” role in attempting to buy this

particular 30 kilograms of cocaine.

Next, Sinisterra contends that the district court erred when

it determined that his objection to his criminal history score was

moot. He argues that if the district court concluded that he had

a Category I criminal history score, he would be entitled to the

“safety valve” reduction of sentence. He urges this court to

remand the case to the district court for specific findings on his

challenge to the Probation Office’s assertion that he committed the

instant offense while on probation for a DUI offense. Sinisterra’s

argument fails because the district court ultimately determined

that he had a Category I criminal history score, when it found that

his Category II score as determined by the Probation Office overrepresented his criminal past. Thus, we perceive no error by the

district court in failing to make specific findings regarding
5

whether Sinisterra was on probation when he committed the instant

offense.

Finally, Sinisterra challenges the district court’s conclusion

that he was not eligible for the “safety valve” reduction.

Although he met the criteria provided in U.S.S.G. § 5C1.2, the

district court found Sinisterra was not eligible for the “safety

valve” reduction because his guideline sentence range (121-151

months) at base offense level 32 was not below the statutory

minimum of ten years. Although this is correct, Sinisterra argues

for the first time on appeal that he is nonetheless entitled to a

two-level reduction in base offense level which would result in a

sentencing range of 97-121 months under U.S.S.G. § 2D1.1(b)(6),

thus placing his guideline range below the mandatory minimum

sentence and entitling him to the “safety valve” reduction. The

Government failed to respond to Sinisterra’s argument regarding §

2D1.1(b)(6).

Because Sinisterra raises this argument for the first time on

appeal, we will reverse only upon a finding of plain error. FED.

R. CRIM. P. 52(b); United States v. Olano, 507 U.S. 725 (1993);

United States v. Calverley, 37 F.3d 160 (5th Cir. 1994)(en banc).

Under the plain error standard: (1) there must be error; (2) the

error must be clear or obvious; and (3) the error must affect

substantial rights. Calverley, 37 F.3d at 162-64. Even if these

factors are established, it is within our sound discretion whether

to correct the forfeited error. Olano, 507 U.S. at 735. We will

correct plain error when the error seriously affects the fairness,
6

integrity or public reputation of the judicial proceedings. Olano,

507 U.S. at 736.

Section 2D1.1(b)(6) provides: “If the defendant meets the

criteria set forth in subdivisions (1)-(5) of § 5C1.2 . . . and the

offense level determined above is level 26 or greater, decrease by

2 levels.” The district court determined that Sinisterra met the

criteria of § 5C1.2 and Sinisterra’s offense level was greater than

26. Thus an error occurred in computing Sinisterra’s base offense

level. Under § 2D1.1(b)(6) his base offense level should have been

30 with a corresponding sentencing range of 97-121 months. This

error was clear and obvious as it was evident from a plain reading

of § 2D1.1(b)(6). See United States v. Aderholt, 87 F.3d 740, 744

(5th Cir. 1996)(finding obvious error from reading the statute).

We next address whether the error affected substantial rights.

We have noted that a misapplication of the Guidelines may

constitute plain error. See United States v. Franks, 46 F.3d 402,

403 (5th Cir. 1995)(concluding that a four-level error in offense

level causing defendant to be sentenced to an additional 63 months

imprisonment was plain error). See also Aderholt, 87 F.3d at 744

(concluding that substantial rights were affected because absent an

upward departure, defendant would have received a lesser sentence).

Our recent decision in United States v. Leonard, ___ F.3d ___, 1998

WL 671374 (5th Cir. 1998), however, mandates the conclusion that

Sinisterra’s substantial rights were not affected. The Leonard

court was faced with a plain error determination involving the same
 

2At the time Leonard was sentenced, the provision regarding a

two-level reduction if the criteria of § 5C1.2 were met and the

offense level was 26 or greater was contained in § 2D1.1(b)(4).

Under the version of the Guidelines in effect at the time

Sinisterra was sentenced, that same provision is now contained in

§ 2D1.1(b)(6).

7

Guideline at issue in the case at bar.2 The Leonard court found

that failure to decrease an offense level by two levels pursuant to

§ 2D1.1(b)(4) was an error which was clear and obvious. Had the

error not occurred, the resulting offense level would have been 30

instead of 31 (the district court had reduced the offense level by

only one level) and the resulting guideline range would have been

97-121 months. Because the district court sentenced Leonard to 108

months imprisonment and because upon remand the district court

could reinstate the same sentence under the correct guideline

range, the court upheld the sentence, citing United States v.

Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). 

We are faced with a similar situation here. Sinisterra was

sentenced to 121 months imprisonment. Upon remand for

resentencing, the correct guideline range would be 97-121 months.

Because the district court could impose the same sentence upon

remand under the appropriate guideline range, we conclude that

Sinisterra’s substantial rights were not affected. Accordingly, we

affirm the sentence imposed by the district court.

AFFIRMED.