     Case: 16-41114      Document: 00513960854         Page: 1    Date Filed: 04/20/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 16-41114                                    FILED
                                  Summary Calendar                              April 20, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

ROGELIO RINCON-GOMEZ,

                                                 Defendant–Appellant.




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:16-CR-266-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Rogelio Rincon-Gomez appeals the sentence imposed on his conviction of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41114     Document: 00513960854      Page: 2   Date Filed: 04/20/2017


                                  No. 16-41114

possession with intent to distribute approximately 487 kilograms of a mixture
or substance containing a detectable amount of marihuana in violation of
18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(B). He contends that a re-
mand is necessary because (1) the district court failed to rule expressly on his
request for a mitigating-role reduction per U.S.S.G. § 3B1.2; and (2) assuming
it implicitly denied the request, the district court did not evaluate his culpabil-
ity relative to that of the other participants and articulate a factual basis for
the denial. According to Rincon-Gomez, the court clearly erred by denying him
a mitigating-role reduction because, on this record, the court could not plaus-
ibly have concluded that he was not substantially less culpable than was the
average participant in the criminal activity.

      Although the district court failed to make an explicit ruling on Rincon-
Gomez’s request for a mitigating-role reduction, it implicitly overruled the
objection when it adopted the findings and guidelines calculations in the
presentence report (“PSR”), as modified by its grant of the government’s motion
for an additional one-level reduction for acceptance of responsibility.        See
United States v. King, 773 F.3d 48, 52 (5th Cir. 2014); United States v.
Rodriguez-Rodriguez, 388 F.3d 466, 468 n.8 (5th Cir. 2004). Further, the rec-
ord reflects that the district court considered Rincon-Gomez’s written objec-
tions to the PSR and his arguments in support of those objections. “The district
court was not required to expressly weigh each factor in § 3B1.2 on the record,”
United States v. Torres-Hernandez, 843 F.3d 203, 209 (5th Cir. 2016), and the
requirement that the court articulate a factual basis for its denial of a mitigat-
ing role reduction was satisfied by its adoption of the PSR, see United States v.
Gallardo-Trapero, 185 F.3d 307, 324 (5th Cir. 1999).

      Rincon-Gomez had the burden of proving, by a preponderance of the evi-
dence, that he was “substantially less culpable than the average participant in


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                                 No. 16-41114

the criminal activity.” § 3B1.2, comment. (n.3(A)); see United States v. Garcia,
242 F.3d 593, 597 (5th Cir. 2001). The district court’s implicit conclusion that
Rincon-Gomez failed to meet that burden is plausible in light of the record as
a whole. See United States v. Castro, 843 F.3d 608, 612–14 (5th Cir. 2016);
Torres-Hernandez, 843 F.3d at 208–10. Accordingly, the court did not clearly
err by denying the request for a reduction.

      The judgment is AFFIRMED.




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