IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40793 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BUFFIE MCILWAIN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:00-CR-55-1 -------------------- February 20, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Buffie McIlwain appeals the judgment of conviction following

her entry of a guilty plea to a charge of possession with intent

to distribute less than 100 kilograms of marijuana. McIlwain

contends that the Government breached the plea agreement, the

district court erred when it included cocaine as well as

marijuana in the determination of her base offense level, and the

district court erred when it denied her a decrease for being a

minor participant.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-40793 -2-

We review de novo the Government’s compliance with a plea

agreement. United States v. Valencia,

(5th

Cir. 1993). We consider whether the Government’s conduct is

consistent with the defendant’s reasonable understanding of the

agreement. United States v. Cantu,

(5th Cir.

1999).

The Government did not stipulate in the plea agreement that

McIlwain’s sentence would be based solely on the quantity of

marijuana. The plea agreement in fact cautioned McIlwain that

her sentence was to be imposed by the district court in

accordance with the Sentencing Guidelines and that any estimate

of the probable sentence that McIlwain may have received from

counsel or the Government was not a prediction or a promise and

was not binding on the Government or on the district court. The

Government’s clarification of its position at sentencing

concerning McIlwain’s knowledge of the cocaine did not constitute

a breach of the plea agreement. See United States v. Reeves,

(5th Cir. 2001).

A defendant’s base offense level for a drug-trafficking

offense is determined by the quantity of drugs involved; the

applicable drug quantity includes drugs with which the defendant

was directly involved and drugs that can be attributed to her as

relevant conduct. United States v. Foy,

(5th

Cir. 1994); U.S.S.G. § 1B1.3(a)(1). We review the district

court’s determination of drug quantity for clear error. United

States v. Young,

(5th Cir. 1993). No. 01-40793 -3-

McIlwain admitted involvement with marijuana and cocaine at

the time of her arrest. Because McIlwain has not presented

evidence to rebut the information in the presentence report, the

district court was free to rely on the presentence report at

sentencing. United States v. Vital,

(5th Cir.

1995); Young,

.

We review a district court’s finding concerning a

defendant’s role in the offense for clear error. Burton v.

United States,

(5th Cir. 2000). McIlwain bears

the burden of establishing entitlement to a reduction for her

role in the offense by a preponderance of the evidence.

A

“minor” participant is “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).

McIlwain was driving the vehicle when the police made the

stop. She was a listed driver on the vehicle rental agreement.

The police found over 23 kilograms of marijuana and over one

kilogram of cocaine in the vehicle. At the time of the stop,

McIlwain admitted knowledge and control of the marijuana and

cocaine. McIlwain’s admitted role as a courier does not

necessarily make her a minor participant. See United States v.

Rojas,

(5th Cir. 1989); United States v.

Gallegos,

(5th Cir. 1989). The judgment of the

district court is AFFIRMED.