     Case: 14-41288       Document: 00513184250         Page: 1     Date Filed: 09/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-41288
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          September 8, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

JUAN RODRIGUEZ-GUERRERO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-17-4


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Rodriguez-Guerrero pleaded guilty to conspiracy to possess, with
intent to distribute, 100 kilograms or more of marijuana, in violation of 21
U.S.C. §§ 841(a)(1) & (b)(1)(B) and 846. He was sentenced, within the advisory
sentencing range of the Sentencing Guidelines, to 57 months’ imprisonment.
       Rodriguez contends the court committed procedural error by failing to
award a reduction for a mitigating role, pursuant to Guideline § 3B1.2


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 14-41288

(granting a four-point reduction for “minimal” participation, a two-point
reduction for “minor” participation, and a three-point reduction for cases “in
between”). He also asserts his sentence is substantively unreasonable because
it is greater than necessary to achieve the sentencing goals set forth in 18
U.S.C. § 3553(a).
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). Although he
raised his procedural-error challenge in district court, Rodriguez did not raise
his substantively-unreasonable challenge; therefore review for that second
issue is only for plain error. E.g., United States v. Broussard, 669 F.3d 537,
546 (5th Cir. 2012). Under that standard, Rodriguez must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion
to correct the error, but should do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. Id.
      Regarding the procedural-error issue, whether Rodriguez was a minor or
minimal participant, as claimed in district court, is a factual finding; therefore,
the denial of the reduction is reviewed for whether the finding was clearly
erroneous. United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
Rodriguez assisted with the transport of a large shipment of marijuana. See
United States v. Perez-Solis, 709 F.3d 453, 471 (5th Cir. 2013) (defendant’s
participation in the offense should be determined based on the conduct for
which he was held accountable, rather than the criminal enterprise as a
whole). He conspired with others to possess, with the intent to distribute, more



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                                 No. 14-41288

than 100 kilograms of marijuana. Because Rodriguez’ role was not minor or
minimal with regard to his discrete offense, he fails to establish the finding
was clearly erroneous. See id.
      Regarding our plain-error review for the challenge to the substantive
reasonableness    of   the   sentence,       within-Guidelines   sentences     are
presumptively reasonable. United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009).    The court considered Rodriguez’ contentions in
mitigation, assertions for a mitigating role reduction, the § 3553(a) sentencing
factors, and the Guidelines, before concluding a 57-month sentence was
appropriate. Rodriguez’ assertion the court should have imposed a lesser
sentence merely reflects his disagreement with its propriety. See United States
v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). He has not shown sufficient reason
to disturb the presumption of reasonableness applicable to his sentence. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.




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