                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No.  10-4712


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALEJANDRO HERNANDEZ,

                Defendant - Appellant. 



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. ( 1:09-cr-00502-CMH-1)


Submitted:   March 10, 2011                 Decided:   April 11, 2011


Before KING, AGEE, and DAVIS, Circuit Judges. 


Affirmed by unpublished per curiam opinion. 


Mark Bodner, Fairfax, Virginia, for Appellant.  Neil H. MacBride,
United States Attorney, Lisa L. Owings, Assistant United States
Attorney, Alexandria, Virginia, for Appellee. 


Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM:

             Defendant            Alejandro         Hernandez               appeals         the

seventy-month          sentence    imposed       after    he   was     found       guilty    of

conspiracy        to     distribute    500        grams       or     more     of    cocaine. 

Hernandez received a two-level reduction for having a minor role

in    the   offense,        under     U.S.       Sentencing          Guidelines       Manual

§ 3B1.2(b) (2009).            On appeal, Hernandez argues that he should

have received a total of four levels of reduction because he was

a minimal participant in the conspiracy.                            Finding no error, we

affirm. 

             We    review    a    sentence       under    a    deferential          abuse    of

discretion standard.               Gall v. United States, 552 U.S. 38, 51

(2007).      The first step in this review requires the court to

inspect     for    procedural       reasonableness            by    ensuring       that     the

district     court       committed     no     significant           procedural        errors. 

United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir.  2010). 

A reviewing court then considers the substantive reasonableness

of the sentence imposed, taking into account the totality of the

circumstances.           Gall, 552 U.S. at 51.              This court presumes that

a    sentence     within    a     properly-calculated              Guidelines      range     is

reasonable.        United States v. Allen, 491 F.3d 178, 193 (4th Cir. 

2007). 

             Hernandez challenges whether the district court acted

unreasonably in denying him a four-level reduction based on his

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minimal role in the offense.                        A defendant has the burden of

showing by a preponderance of the evidence that he had a minimal

or minor role in the offense.                       United States v. Akinkoye, 185

F.3d    192,    202    (4th       Cir.     1999).       A    defendant        may   receive    a

four-level reduction for being a minimal participant if he is

“plainly       among   the        least    culpable    of    those        involved   in    the

conduct of a group.”  USSG § 3B1.2, comment. ( n.4).                                 This level

of culpability is shown by “the defendant's lack of knowledge or

understanding of the scope and structure of the enterprise and

of the activities of others . . . .”                       Id.   A two-level reduction

may be made when a defendant is a minor participant, that is,

one    “who    is   less      culpable      than    most    other      participants,       but

whose role could not be described as minimal.”                                USSG § 3B1.2,

comment.       (n.5).          In    deciding    whether       the    defendant      played    a

minor or minimal role, the “critical inquiry is thus not just

whether       the   defendant        has    done     fewer      ‘bad      acts’    than    his

co-defendants, but whether the defendant’s conduct is material

or    essential       to    committing       the    offense.”           United     States    v.

Pratt, 239 F.3d 640, 646 (4th Cir.  2001) (internal quotations

and citations omitted).                Role adjustments are determined on the

basis of the defendant's relevant conduct.                              United States v.

Fells, 920 F.2d 1179, 1183-84 (4th Cir.  1990).                                 The district

court    in    this        case    denied    the    minimal        role    reduction,      and



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instead applied the minor role reduction; this finding is not

clearly erroneous. 

              Hernandez argues that he did not have knowledge or

awareness of the scope, contacts, or arrangements for the deal

and was only an unwitting driver; nor did he possess the cocaine

at the time of the arrest.              A minimal role reduction is improper

where   the     defendant’s         “conduct    is    material    or    essential      to

committing the offense.”                United States v. Palinkas, 938 F.2d

456,    460    (4th    Cir.     1991).        Here,      Hernandez’s      role    was    an

essential part of the transaction.                    He was the driver, driving

the    seller    and    the    cocaine     to   the    original    location,         then

following the buyer’s agent and the cocaine to the new deal

location with the other co-conspirators in the truck, he stayed

with the group for approximately two hours while they waited for

the buyer to arrive.                Hernandez’s actions demonstrate that he

understood what he and his co-conspirators were undertaking and

that he was, at the least, working with the seller to facilitate

the deal. 

              Under    these        circumstances,      we    conclude        that    the

district      court    did    not    clearly    err    by    refusing    to    award    a

greater mitigating role adjustment.                    Because the district court

correctly calculated Hernandez’s Guidelines range, there are no

procedural      defects       in     his   sentence.          Hernandez        does    not



                                            4
challenge    on    appeal       the   substantive   reasonableness     of     his

sentence. 

            Accordingly, we affirm the district court’s judgment. 

We   dispense     with   oral    argument    because   the   facts   and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process. 



                                                                      AFFIRMED




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