     Case: 09-41094     Document: 00511218517          Page: 1    Date Filed: 08/30/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 30, 2010
                                     No. 09-41094
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SERGIO AYALA-TELLO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:09-CR-366-2


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Sergio Ayala-Tello pleaded guilty without the benefit of a plea agreement
to possession with intent to distribute less than 100 kilograms of marijuana.
Ayala-Tello was indicted for possessing more than 100 kilograms, but the
Government stipulated to an amount between 90 and 100 kilograms. Ayala-
Tello sought an offense level reduction as a minor participant and a downward
departure based on his assertion that he agreed to smuggle the marijuana
because of “the physical hazards and risks associated with prolonged exposure

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41094

to the elements” he would have encountered had he chosen to wait rather than
participate in the offense. The district court, after hearing argument, denied the
requests and sentenced Ayala-Tello to 44 months in prison.
      Ayala-Tello argues that the district court clearly erred in failing to grant
a reduction for his minor role in the offense. He contends that his presence was
peripheral to the drug transporting because he was “just along for the ride.” A
U.S.S.G. § 3B1.2 reduction applies only when a defendant is substantially less
culpable than the average participant. United States v. Villanueva, 408 F.3d
193, 203-04 (5th Cir. 2005); United States v. Garcia, 242 F.3d 593, 598-99 (5th
Cir. 2001).   Whether the defendant is a minor participant is a factual
determination that is reviewed for clear error. Villanueva, 408 F.3d at 203.
Ayala-Tello’s argument that he was simply along for the ride is in direct conflict
with his statement at the time of his guilty plea that he knew the marijuana was
present and that he was to be paid for transporting it within the United States.
His argument on appeal is also in direct conflict with his objection to the
presentence report in which he asserted that he agreed to “assist” in the
transportation of the bundles of marijuana. The district court did not clearly err
in denying him a role adjustment under § 3B1.2. See Villanueva, 408 F.3d at
203 & n.9.
      Ayala-Tello argues that the district court erred in failing to grant a
downward sentencing departure based on his assertion that he was coerced into
joining the marijuana transportation scheme by the exigencies of being stranded
between the Rio Grande River and the ship channel. This court generally lacks
the jurisdiction to review a district court’s refusal to depart downwardly from the
guidelines sentencing range. United States v. Hernandez, 457 F.3d 416, 424 (5th
Cir. 2006).   The jurisdictional bar applies even where the district court
summarily denies a request for a downward departure or implicitly denies the
request by imposing a within-guidelines sentence. Id. This court, however, does
have the authority to review the denial of a motion to downwardly depart where

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                                 No. 09-41094

the district court “‘held a mistaken belief that the Guidelines do not give it the
authority to depart.’” United States v. Lucas, 516 F.3d 316, 350 (5th Cir.), cert.
denied, 129 S. Ct. 116 (2008) (quoting United States v. Sam, 467 F.3d 857, 861
(5th Cir. 2006)). Ayala-Tello does not argue and nothing in the record indicates
that the district court believed it lacked the authority to grant the request for a
downward sentencing departure. Accordingly, this court lacks jurisdiction to
review the district court’s denial of the motion for a downward departure. See
Lucas, 516 F.3d at 350.
      To the extent that Ayala-Tello argues that the district court abused its
discretion by not reducing his sentence pursuant to 18 U.S.C. § 3553(a) based on
“his subjective point of view,” his argument is unavailing. Following United
States v. Booker, 543 U.S. 220 (2005), sentences are reviewed for reasonableness
in light of the sentencing factors set forth in § 3553(a). United States v. Mares,
402 F.3d 511, 518-19 (5th Cir. 2005). This court’s precedent makes it clear that
“a checklist recitation of the section 3553(a) factors is neither necessary nor
sufficient for a sentence to be reasonable.” United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006); see also United States v. Rita, 551 U.S. 338, 358 (2007).
Ayala-Tello’s argument is no more than a disagreement with the district court’s
balancing of the § 3553(a) factors and the aptness of the sentence imposed. This
disagreement does not show error in connection with his sentence, nor does it
show that the sentence imposed was not “reasonable under the totality of the
relevant statutory factors.” United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (quotation marks omitted).
      AFFIRMED.




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