UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50193 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IRWIN JOSE BONILLA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (EP-00-CR-1522-ALL-DB) _________________________________________________________________ November 26, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

In challenging the sentence (including 27 months imprisonment)

for his convictions for importation of, and possession with intent

to distribute, marijuana, Irwin Jose Bonilla maintains the district

court erred in denying him an offense level reduction, pursuant to

U.S.S.G. § 3B1.2, for his role in the offense.

The district court’s application of the Sentencing Guidelines

is reviewed de novo; its findings of fact, for clear error. E.g.,

United States v. Stevenson,

(5th Cir. 1997). A

ruling that a defendant did not play a minor role in the offense is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. reviewed only for clear error. E.g., United States v. Zuniga,

(5th Cir.), cert. denied,

(1994).

The Guidelines allow a minor participant in any criminal

activity a two-level reduction in his base offense level. U.S.S.G.

§ 3B1.2(b). A “minor participant” is defined as one who is “less

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

described as minimal”. U.S.S.G. § 3B1.2, cmt. n.3 (2000). The

defendant bears the burden of proving he was a minor participant.

United States v. Marmolejo,

(5th Cir. 1997),

cert. denied,

(1998).

Bonilla was not charged with conspiracy; he was charged with

importation of, and possession with intent to distribute,

marijuana. His sentence was calculated based on the quantity of

marijuana (approximately 38 kilograms) he transported in his

vehicle. Marmolejo held that the defendant could not claim to be

a minor participant in relation to his offense when his sentence

was based only on the amount of drugs he participated in

transporting.

; see United States v. Flucas,

(5th Cir. 1996) (holding that defendant was not

entitled to an adjustment under U.S.S.G. § 3B1.2, because he had

been held accountable only for drugs in his possession), cert.

denied,

(1997).

Accordingly, even assuming Bonilla was only a “mule” in a

narcotics organization, he would not be entitled to an adjustment

under U.S.S.G. § 3B1.2, because his limited participation in the

organization was not relevant to his sentence, which was based only

2 on the amount of drugs he transported. Therefore, Bonilla’s

contention that the district court based its ruling on Bonilla’s

silence at the sentencing hearing, rather than on the evidence

presented, is without merit.

AFFIRMED

3