UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 96-60541 Summary Calendar

VICTOR LEE ROSIER,

Petitioner,

VERSUS

UNITED STATES PAROLE COMMISSION,

Respondent.

Appeal from the United States District Court for the Northern District of Texas February 24, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:

The Mexican Federal Judicial Police arrested Victor Lee

Rosier, a United States Citizen, in Tijuana, Mexico, near the

Ysidoro port of entry to the United States, when they found him

parked in a van containing marijuana. The arrest occurred

following a search of the vehicle Rosier was driving which

discovered three tool-parts boxes holding 146.25 kilograms of

marijuana. Rosier was convicted and sentenced in Mexico for

possession of marijuana. Pursuant to the Treaty on Executions of

Penal Sentences, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718, Rosier was transferred to the United States to serve his

sentence.

Upon transfer, the Parole Commission determined a release date

and a period and conditions of supervised release for Rosier. See

18 U.S.C. § 4106A(b)(1)(A). At the transfer hearing, and in an

interview with the probation officer, Rosier explained that Victor

Vega, for whom he worked as a landscaper, asked him to help move

the van to a friend’s house. Rosier stated that Vega promised to

pay him a “certain amount of money” after the vehicle was delivered

to his friend’s house across the border. Rosier explained to

Mexican authorities that although he was never told that marijuana

was in the van, he suspected this might be the case given the

amount of money he was to be paid and that those persons involved

had many weapons at their home and on their persons. Rosier also

explained to the Mexican authorities that he had received money for

driving the van for “Victor N.” on other occasions.

On October 6, 1994, Rosier and Vega crossed the border from

California and entered Tijuana, Mexico, to retrieve the van. Vega

gave the keys to the van to Rosier and Rosier followed Vega to the

friend’s house, where Rosier was instructed to give the keys to

Vega’s friend. Rosier parked the van at Vega’s friend’s house and

delivered the keys. Rosier was subsequently arrested. Vega’s

friend identified Rosier as the driver of the van. Mexican

authorities convicted and sentenced Rosier to five years

imprisonment.

2 After his transfer to the United States, the probation officer

calculated Rosier’s base offense level at 26 by using the United

States federal offense of possession of marijuana with intent to

distribute,

(b)(1)(B), which was the offense most

analogous to Rosier’s criminal offense in Mexico. See 18 U.S.C. §

4106A(b)(1)(A).

At his transfer hearing, Rosier requested a downward

adjustment for a “minor” or a “minimal” role contending that he was

no more than “a mule, perhaps even an unwitting mule.” The Parole

Commission determined that Rosier’s sentence should be adjusted

downward for his “minor” role in the offense, stating that “[h]e

clearly fits the profile of a mule and according to the testimony

was not even aware that drugs were involved, although he did

suspect that they may in some way be involved.” A base offense

level of 24, with the minor role reduction, combined with Rosier’s

criminal history category of II, resulted in a guideline

imprisonment range of 57-71 months.

Rosier appeals from the Parole Commission’s decision,

contending that the Parole Commission clearly erred when it reduced

his sentence for a “minor” role in the offense instead of applying

the guideline reduction for his “minimal” role, which carries a

greater downward reduction. Assuming Rosier raised this issue

below,1 we review the Commissioner’s determination under the

sentencing guidelines de novo. See Molano-Garcia v. United States

1 The Parole Commission contends that Rosier failed to object to his sentence below and raises this objection for the first time on appeal.

3 Parole Comm’n,

(5th Cir. 1992). We review the

Parole Commission’s factual findings for clear error. See

The United States Sentencing Guidelines2 distinguish between

a “minor” and “minimal” participant in the commentary, noting that

minimal status is “intended to cover defendants who are plainly

among the least culpable ... [and a] defendant’s lack of knowledge

or understanding of the scope and structure of the enterprise and

of the activities of others is indicative of a role as minimal

participant.” See U.S.S.G. § 3B1.2, comment. (n.1). The

commentary further states that the “downward adjustment for a

minimal participant will be used unfrequently” and provides an

example of a one-time courier recruited to smuggle a small amount

of drugs as an appropriate candidate for minimal participant

status. U.S.S.G. § 3B1.2, comment. (n.2). A “minor” participant,

on the other hand, is described as “any participant who is less

culpable than most other participants, but whose role could not be

described as minimal.” U.S.S.G. § 3B1.2, comment. (n.3).

Whether to apply the “minor” or the “minimal” adjustment to a

sentence involves a determination that is heavily dependent upon

the facts of the particular case. An offender’s status as a mere

courier does not necessarily mean that he is entitled to a

reduction in sentence. See, e.g., United States v. Bethley,

(5th Cir. 1992) (holding that a transporter of drugs

is not entitled to a minor or minimal participant status).

2 U.S.S.G. § 3B1.2.

4 After carefully reviewing the briefs, the record excerpts and

relevant portions of the record itself, we hold that the Parole

Commission did not err in applying the “minor” participant

departure rather than the “minimal” participant departure in this

case. Rosier admitted to Mexican authorities that he had driven

the vehicle on other occasions and that he was paid large sums of

money for doing so. He also admitted that he suspected that drugs

were in the van. Rosier cannot, therefore, reasonably assert that

he lacked knowledge or understanding of the enterprise to the

degree necessary to support a reduction as a minimal participant.

For the foregoing reasons, we AFFIRM the decision of the Parole

Commission.

AFFIRMED.

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