IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10434 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR HERNANDEZ,

Defendant- Appellant.

------------------------------------------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-234-5-H -------------------------------------------------------- February 9, 2001

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges:

PER CURIAM:*

Oscar Hernandez appeals his convictions for a drug conspiracy, possession of narcotics with

intent to distribute, and possession of a firearm in furtherance of a drug offense. He asserts that the

evidence was insufficient to support his firearms conviction. We hold that the evidence was sufficient

to find a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt.

See United States v. Bell,

(5th Cir. 1982)(en banc), aff’d,

(1983).

Hernandez also challenges the district court’s calculation of the base offense level based upon

the information set forth in the presentence investigation report (PSR). He contends that the PSR

stated that he should be held responsible for 16,000 pounds of marijuana because he was involved

in the conspiracy for 16 months and the conspiracy received 1,000 pounds each month, but that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. trial testimony did not support these conclusions. He did not challenge these facts in the district

court, and review is for plain error. United States v. Krout,

(5th Cir. 1995);

United States v. Calverley,

(5th Cir. 1994)(en banc). Trial testimony supports

the statements in the PSR regarding the length of Hernandez’s involvement in the conspiracy and the

monthly drug amount attributable to the conspiracy. Hernandez also contends, as he did in the

district court, that the 16,000 pounds of marijuana was not reasonably foreseeable to him and that

he should be sentenced based only on the drug amounts connected to him at trial. Because

Hernandez was convicted for participation in a drug conspiracy, he may be sentenced based upon a

larger drug amount than he personally possessed or controlled. See United States v. Puig-Infante,

(5t h Cir. 1994). His actions as a regular runner of drugs and money and as an

individual in charge of storing drugs for the conspiracy permits a rational conclusion that Hernandez

could have reasonably foreseen these additional drug quantities.

Hernandez contends that the district court erred in not granting him a downward adjustment

for his minor role in the offense under U.S.S.G. § 3B1.2. Such a reduction is applicable only if the

defendant is substantially less culpable than the average participant. United States v. Lokey,

(5th Cir. 1991); U.S.S.G. § 3B1.2, comment. (n.3). A review of the actions taken by the

other members of the conspiracy reveals that Hernandez was an average participant and that the

district court therefore did not err in failing to award a reduction. United States v. Devine,

(5th Cir. 1991).

Hernandez maintains that because his sentence is significantly higher than those received by

his codefendants, the district court erred in applying the Sentencing Guidelines to him. A defendant

“cannot base a challenge to his sentence solely on the lesser sentence given by the district court to

his codefendant.” United States v. Boyd,

(5th Cir. 1989). As stated above, the

information provided in the PSR is not inherently unreliable and will not support a conclusion that

the dist rict court should not have sentenced Hernandez under the Sentencing Guidelines. His

conviction and sentence are AFFIRMED.