United States v. Francisco Chavira ( 1996 )


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  •                                         ___________
    No. 96-1534
    ___________
    United States of America,                     *
    *
    Appellee,                       *
    *     Appeal from the United States
    v.                                       *     District Court for the
    *     Southern District of Iowa.
    Francisco Javier Chavira                      *
    *           [UNPUBLISHED]
    Appellant.                      *
    ___________
    Submitted:        November 12, 1996
    Filed:     November 22, 1996
    ___________
    Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
    ___________
    PER CURIAM.
    Francisco      Javier    Chavira     and      a   codefendant   were   charged    with
    conspiring to possess cocaine and marijuana with intent to distribute
    (Counts I and II), in violation of 
    21 U.S.C. § 846
     (1994), and possessing
    cocaine and marijuana with intent to distribute (Counts III and IV), in
    violation of 
    21 U.S.C. § 841
    (a)(1) (1994) and 
    18 U.S.C. § 2
     (1994).
    Chavira pleaded guilty to Count III.              The District Court1 sentenced him to
    46 months imprisonment and four years supervised release.
    On appeal, Chavira's appointed counsel moved to withdraw and filed
    a brief pursuant to Anders v. California, 
    386 U.S. 738
     (1967), discussing
    whether   Chavira    was     entitled    to   a     two-level   reduction    as   a   minor
    participant under United States Sentencing
    1
    The Honorable Ronald E. Longstaff, United States District
    Judge for the Southern District of Iowa.
    Guidelines Manual § 3B1.2(b) (1995).   We granted counsel leave to withdraw.
    Although Chavira was granted leave to file a pro se supplemental brief, he
    did not do so.
    Because Chavira did not object to the presentence report or at
    sentencing, we review the District Court's failure to grant Chavira a minor
    participant reduction for plain error resulting in a miscarriage of
    justice.   See United States v. Fritsch, 
    891 F.2d 667
    , 668 (8th Cir. 1989).
    We find no such error and conclude this issue lacks even arguable merit,
    as Chavira has pointed to no facts entitling him to the reduction.      See
    U.S. Sentencing Guidelines Manual § 3B1.2, comment. (n.3) (1995) (defining
    minor participant as "any participant who is less culpable than most other
    participants, but whose role could not be described as minimal"); United
    States v. Thompson, 
    60 F.3d 514
    , 517 (8th Cir. 1995) (defendant bears
    burden of proving entitlement to minor participant reduction).      In fact,
    we believe the record indicates Chavira was deeply involved in the drug
    distribution scheme.    See United States v. West, 
    942 F.2d 528
    , 531 (8th
    Cir. 1991).
    We have reviewed the record in accordance with Penson v. Ohio, 
    488 U.S. 75
    , 80 (1988), and find no nonfrivolous issue for appeal.
    Accordingly, the judgment is affirmed.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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