United States v. Covarrubias , 80 F. App'x 851 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4400
MARGARITO ALTAMIRANO
COVARRUBIAS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(CR-02-132)
Submitted: October 31, 2003
Decided: November 14, 2003
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
David W. Bouchard, Chesapeake, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Janet S. Reincke, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. COVARRUBIAS
OPINION
PER CURIAM:
Margarito Altamirano Covarrubias pled guilty to distribution of
two kilograms of cocaine on May 15, 2002, in violation of 21 U.S.C.
§ 841 (2000), and was sentenced to a term of ninety-seven months
imprisonment. Covarrubias appeals his sentence, arguing that the dis-
trict court clearly erred in finding that he had failed to accept respon-
sibility for his offense, U.S. Sentencing Guidelines Manual § 3E1.1
(2002), and that he was not a minor participant. USSG § 3B1.2. We
affirm.
Covarrubias sold two kilograms of cocaine to Terrence Jernigan in
Portsmouth, Virginia, on May 3, 2002, and returned on May 12, 2002,
to collect the remainder of Jernigan’s payment. Jernigan recognized
the green Lincoln town car Covarrubias was driving as one previously
used by his regular Mexican source in Atlanta, and Jernigan had seen
Covarrubias with "Tomas," who worked for the source, when he was
in Atlanta in April 2002. On May 3, by telephone, Tomas relayed
directions from Jernigan to Covarrubias as to where to meet him.
When Covarrubias delivered the two kilograms, Jernigan thought the
cocaine was coming from his Atlanta source, but the source later
denied sending it, and told Jernigan not to deal with Covarrubias. On
May 15, 2002, Covarrubias distributed another two kilograms of
cocaine to Jernigan. They were both arrested the same day. Jernigan
cooperated with authorities.
Covarrubias entered a guilty plea to the May 15 distribution, but
initially denied making the May 3 sale to Jernigan. He subsequently
admitted picking up money from Jernigan on May 12, but said he
only did it as a favor to Tomas, a friend from his home town in Mex-
ico, and to earn a little extra money. The day before he was sentenced,
faced with the government’s intention to present two witnesses,
Covarrubias admitted making the May 12 distribution to Jernigan. He
continued to deny that he knew Tomas’ last name and professed not
to recognize the phone number of a person who called his cell phone
every fifteen or twenty minutes during the night following his arrest.
Under USSG § 3E1.1, a defendant may be given a two- or three-
level reduction in offense level if he demonstrates by a preponderance
UNITED STATES v. COVARRUBIAS 3
of the evidence that he has accepted responsibility for his offense. The
defendant has the burden of proof in this matter, United States v. Har-
ris, 882 F.2d 902, 907 (4th Cir. 1989), and the district court’s deter-
mination is reviewed for clear error. United States v. Ruhe, 191 F.3d
376, 388 (4th Cir. 1999).
One important consideration for the district court is whether the
defendant has "truthfully admitt[ed] the conduct comprising the
offense(s) of conviction, and truthfully admitt[ed] or not falsely den-
[ied] any additional relevant conduct . . . ." USSG § 3E1.1, comment.
(n.1(a). "A defendant may remain silent in respect to relevant conduct
beyond the offense of conviction . . . . However, a defendant who
falsely denies, or frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent with accep-
tance of responsibility." Id.; United States v. Pauley, 289 F.3d 254,
261 (4th Cir.), modified, 304 F.3d 335 (4th Cir. 2002), cert. denied,
123 S. Ct. 1007 (2003). Even for a two-level adjustment, the timeli-
ness of the defendant’s admission of responsibility is a factor the sen-
tencing court may consider. United States v. Jones, 31 F.3d 1304,
1315 (4th Cir. 1994).
Covarrubias argues that he was entitled to the adjustment because
he fully acknowledged his responsibility for both the May 3 and May
15 distributions, although his complete admission was not timely. He
contends that he was not required to admit relevant conduct beyond
the offense of conviction, the May 15 transaction, to earn the adjust-
ment and, therefore, his timely partial admission was enough. How-
ever, the district court could take into account Covarrubias’ failure to
make a timely admission of all his relevant conduct, as well as his
persistent refusal to provide information about Tomas or to identify
the person who called him repeatedly after his arrest. The district
court did not clearly err in finding that Covarrubias’ conduct was
inconsistent with acceptance of responsibility.
The district court’s determination of the defendant’s role in the
offense is also a factual determination that is reviewed for clear error.
United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). Covarru-
bias contends that he was only a courier doing a favor for Tomas to
earn a little extra money. However, he did not simply transport
cocaine, he sold it to Jernigan. A drug seller in a drug conspiracy is
4 UNITED STATES v. COVARRUBIAS
not a minor participant. United States v. Brooks, 957 F.2d 1138, 1149
(4th Cir. 1992). Therefore, the district court did not clearly err in find-
ing that Covarrubias was not a minor participant.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED