United States v. Rosas-Zuloaga , 30 F. App'x 62 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4560
JESUS EDUARDO ROSAS-ZULOAGA,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-00-407)
Submitted: January 18, 2002
Decided: February 19, 2002
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael W. Patrick, LAW OFFICES OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina, for Appellant. Benjamin H. White, Jr.,
United States Attorney, Steven H. Levin, Assistant United States
Attorney, Bradley Staley, Third-Year Law Student, Greensboro,
North Carolina, for Appellee.
2 UNITED STATES v. ROSAS-ZULOAGA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jesus Rosas-Zuloaga pled guilty to conspiracy to distribute more
than five kilograms of cocaine and more than 100 kilograms of mari-
juana, in violation of 21 U.S.C. § 846 (1994), and was sentenced to
a term of 135 months imprisonment. Rosas-Zuloaga appeals his sen-
tence, arguing that the district court failed to make specific findings
when it rejected his argument for a minor or minimal role adjustment,
U.S. Sentencing Guidelines Manual § 3B1.2(a), (b) (2000), and also
clearly erred in finding that he did not have a mitigating role in the
conspiracy. He makes similar claims with respect to the district
court’s decision to enhance his base offense level for possession of a
firearm under USSG § 2D1.1(b)(1). We affirm.
Authorities made a controlled delivery of three United Parcel Ser-
vice (UPS) packages to Rosas-Zuloaga’s apartment in Winston-
Salem, North Carolina, on July 21, 2000. The packages contained a
total of thirty-one kilograms of cocaine and eight kilograms of mari-
juana. A handgun was recovered from a closet in a hall just off the
living room. When test-fired, the gun proved to be inoperable. Fifteen
identical UPS packages were shipped on the same day from the same
location in Texas to other addresses in Winston-Salem. Controlled
deliveries at those addresses resulted in additional arrests. Rosas-
Zuloaga cooperated after his arrest. He admitted receiving two similar
packages on July 7, 2000, identified his contact within the conspiracy
and that person’s superior, both of whom had come to see him a few
days before the July 7 delivery to make sure everything was in order,
and said that he was paid $1500 for his assistance with that delivery.
At sentencing, the district court determined that Rosas-Zuloaga did
not qualify for a minor or minimal role adjustment. The court did not
credit the testimony of Rosas-Zuloaga’s wife that the family regarded
the gun as a toy and that her husband had used it only as a hammer.
UNITED STATES v. ROSAS-ZULOAGA 3
The court found that it was not clearly improbable that the firearm
was connected with the conspiracy because it could be used for intim-
idation even if it was inoperable. USSG § 2D1.1, comment. (n.3)
(enhancement applies if weapon present during offense unless clearly
improbable that weapon is connected with offense).
We review a district court’s determination of the defendant’s role
in the offense for clear error. United States v. Akinkoye, 185 F.3d 192,
202 (4th Cir. 1999), cert. denied, 528 U.S. 1177 (2000). The defen-
dant has the burden of showing that he is entitled to a reduction for
having a minor or minimal role in a criminal activity. Id. A minor par-
ticipant is one who is less culpable than most other participants, but
whose role cannot be described as minimal. USSG § 3B1.2, comment.
(n.3). A defendant whose conduct is material or essential to the
offense is not a minor participant. Akinkoye, 185 F.3d at 202. Here,
we find that Rosas-Zuloaga failed to make the required showing that
he had either a minor or minimal role. Moreover, he was held respon-
sible for sentencing purposes only for the drugs he personally
received on July 21, but not for any additional drugs that could have
been included in his relevant conduct. In this circumstance, a majority
of courts have held that a role reduction is not warranted. See, e.g.,
United States v. Roberts, 223 F.3d 377, 380 (6th Cir. 2000); United
States v. Rodriguez De Varon, 175 F.3d 930, 941-42 (11th Cir. 1999)
(en banc). Therefore, we cannot find that the district court clearly
erred in holding that the weapon enhancement applied. Because both
issues were fully explored before the court ruled on Rosas-Zuloaga’s
objections, we find that the district court’s findings were adequate to
resolve the issues raised and to permit appellate review.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED