UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SILVESTRE GUEBARA,

Defendant - Appellant.

No. 00-3124

(D.C. No. CR-99-10057-14-MLB)

(D. Kansas.)

ORDER AND JUDGMENT*

Before BRORBY, McKAY, and LUCERO, Circuit Judges.

Appellant Silvestre Guebara was indicted for conspiracy to knowingly possess with intent to distribute 1000 kilograms of a mixture or substance containing a detectable amount of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 and for knowingly possessing with intent to distribute approximately 100 pounds of a mixture or substance containing a detectable amount of marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). In exchange for the government's agreement to dismiss the conspiracy count, appellant entered a plea of guilty to possession with intent to distribute. The district court accepted appellant's plea and ordered preparation of a presentence investigation report ("PSR").

Apparently pursuant to the PSR, which recommended a two-level offense level reduction for acceptance of responsibility, the district court sentenced appellant to sixty-three months imprisonment, six years of supervised release, a $100 assessment, and ineligibility for all federal benefits for a period of five years. Appellant challenges the sentence on two grounds: first, that the sentencing court double counted a 1994 battery conviction in calculating his criminal history category, and second, that the court should have decreased his offense level under U.S.S.G. § 3B1.2 for minor participation.1 Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.

In sentencing appeals, "[w]e review the district court's factual findings under the clearly erroneous standard and review its applications of the Sentencing Guidelines de novo." United States v. Roberts, 185 F.3d 1125, 1144 (10th Cir. 1999) (citation omitted), cert. denied, 120 S. Ct. 1960 (2000). We "'giv[e] due deference to the district court's application of the guidelines to the facts.'" United States v. Vallo, 238 F.3d 1242, 1250 (10th Cir. 2001) (quoting United States v. Patron-Montano, 223 F.3d 1184, 1188 (10th Cir. 2000)). The government argues that a plain error standard of review should apply in this appeal because appellant did not make his arguments before the sentencing court. As explained below, our review of the record would require us to reject appellant's arguments even if we assumed that he properly preserved his objections during sentencing.

Appellant bases his first argument—that the district court double counted his 1994 battery conviction in computing his criminal history category—on his copy of the original version of the PSR, which included two references to the same crime. The double counting in the original PSR, however, was harmless because it did not affect the final criminal history calculation. In addition, the PSR was revised before the sentencing date to omit the double reference. This aspect of the district court's sentencing was not erroneous.2

Similarly, the sentencing court did not err by failing to decrease appellant's offense level for minor participation sua sonte. Under U.S.S.G. § 3B1.2(b), the sentencing court "may grant a two-point reduction if the defendant proves by a preponderance of the evidence [he] acted as a minor participant in the offense." United States v. Chavez, 229 F.3d 946, 956 (10th Cir. 2000) (citing United States v. Lockhart, 37 F.3d 1451, 1455 (10th Cir. 1994)); see United States v. Santistevan, 39 F.3d 250, 254 (10th Cir. 1994) ("It is the defendant's burden to establish, by a preponderance of the evidence, his entitlement to an offense level reduction under § 3B1.2." (citations omitted)). It was appellant's, not the sentencing court's, burden to raise and prove that he was entitled to the decrease in offense level.3

Counsel's motion to withdraw is GRANTED. Appellant's motion to have counsel appointed is DENIED, and his sentence is AFFIRMED.

Entered for the Court

Carlos F. Lucero

Circuit Judge