     Case: 13-41156      Document: 00512890821         Page: 1    Date Filed: 01/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-41156
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          January 6, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

EDWARD IVAN SALINAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-12-1


Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM: *
       Edward Ivan Salinas appeals the sentence imposed after he pleaded
guilty to possession with intent to distribute about 781 kilograms of marijuana.
He contends that the sentence was procedurally unreasonable because the
district court wrongly calculated the guideline range by refusing to grant a
four-level or two-level reduction for his minimal or minor role. We review for
clear error a sentencing court’s determination that a defendant did not play a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-41156   Document: 00512890821     Page: 2   Date Filed: 01/06/2015


                                   No. 13-41156

minor or minimal role in the offense. United States v. Fernandez, 770 F.3d
340, 345 (5th Cir. 2014). “A factual finding is not clearly erroneous as long as
it is plausible in light of the record as a whole.” Id. (internal quotation marks
and citations omitted).
        A mitigating role reduction “is not precluded” for a defendant who
transported drugs and was held accountable only for the drugs he handled.
U.S.S.G. § 3B1.2, cmt. n.3(A) (2012). The Introductory Commentary to Section
3B1 states:
        This Part provides adjustments to the offense level based upon the
        role the defendant played in committing the offense. The
        determination of a defendant’s role in the offense is to be made on
        the basis of all conduct within the scope of §1B1.3 (Relevant
        Conduct), i.e., all conduct included under §1B1.3(a)(1)-(4), and not
        solely on the basis of elements and acts cited in the count of
        conviction.
Recently, we explained:
        Section 3B1.2 does not contemplate that the participation level is
        to be evaluated in reference to the entire criminal enterprise of
        which Defendant is a part. Instead, [§] 3B1.2 asks whether a
        defendant’s involvement is comparable to that of an average
        participant. Whether someone was an average participant is to be
        determined in light of the conduct for which the defendant is held
        responsible.

United State v. Perez-Solis, 709 F.3d 453, 471 (5th Cir. 2013)(internal
quotation marks and citations omitted). Furthermore, “[i]t is not enough that
a defendant does less than other participants; in order to qualify as a minor
participant, a defendant must have been peripheral to the advancement of the
illicit activity.” United States v. Thomas, 690 F.3d 358, 375-76 (5th Cir. 2012)
(internal quotation marks and citation omitted).        Also, Salinas’s role as a
transporter does not necessarily entitle him to a sentence reduction. See id. at
376.



                                         2
    Case: 13-41156    Document: 00512890821     Page: 3   Date Filed: 01/06/2015


                                 No. 13-41156

      Salinas was only held responsible for the amount of marijuana found in
the van he was driving and in a nearby shed, not for some larger amount that
might have been part of an undefined broader conspiracy.           Salinas was
entrusted with driving the van and he also unloaded drugs from the van. Other
participants carried the drugs out of the brush and loaded the van. Another
participant who helped Salinas unload the van was not prosecuted. Salinas
has not demonstrated that his role was minor or minimal with regard to his
discrete offense or that he was less culpable than the average participant in
light of the conduct for which he was held responsible. Here, the district court
did not clearly err in denying Salinas a mitigating role reduction.   See Perez-
Solis, 709 F.3d at 471-72. The judgment is AFFIRMED.




                                       3
