     Case: 17-10524      Document: 00515006095         Page: 1    Date Filed: 06/21/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 17-10524
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                       June 21, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

GREG CLAY,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:16-CR-243-9


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Greg Clay pleaded guilty to using a communication facility to facilitate
a drug felony and was sentenced to 46 months of imprisonment and one year
of supervised release. On appeal, he argues that the district court clearly erred
by denying him a minimal role adjustment pursuant to U.S.S.G. § 3B1.2(a).
He also argues for the first time on appeal that the district court employed an




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-10524      Document: 00515006095     Page: 2   Date Filed: 06/21/2019


                                  No. 17-10524

erroneous methodology and provided an insufficient explanation when it
denied him a minimal role adjustment.
      Whether a defendant was a minimal participant under § 3B1.2 is a
factual determination that we review for clear error. United States v. Gomez-
Valle, 828 F.3d 324, 327 (5th Cir. 2016). If the district court’s findings are
plausible in light of the record as a whole, there is no clear error. United States
v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012). The defendant has the burden of
demonstrating his entitlement to a minimal role adjustment. United States v.
Castro, 843 F.3d 608, 612 (5th Cir. 2016). A minimal participant is one who
“plays a minimal role in the criminal activity” and is “plainly among the least
culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2 cmt.
n.4. The district court’s conclusion that Clay did not meet his burden of proof
that he was entitled to a four-level minimal role adjustment is plausible in
light of the whole record. See Castro, 843 F.3d at 612.
      As to Clay’s second argument, because Clay did not object in the district
court to its methodology or the sufficiency of its explanation when it denied
him a four-level minimal role adjustment, his challenge is subject to plain error
review. See United States v. Fernandez, 770 F.3d 340, 345 (5th Cir. 2014).
Clay fails to meet the plain error standard. See Puckett v. United States, 556
U.S. 129, 135 (2009).
      The judgment of the district court is AFFIRMED.




                                        2
