     Case: 15-30929      Document: 00513493559         Page: 1    Date Filed: 05/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30929
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 5, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DEMETRIO REGALADO, also known as Dee,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:09-CR-124-1


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Demetrio Regalado appeals the sentence imposed following his guilty
plea conviction for conspiracy to possess with intent to distribute
methamphetamine and cocaine in violation of 21 U.S.C. § 846. He argues that
the district court erred by imposing a four-level enhancement under U.S.S.G.
§ 3B1.1(a) based on the finding that he was an organizer or leader of the offense
and by denying a mitigating role reduction under U.S.S.G. § 3B1.2. He also


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30929

challenges the district court’s enhancement of his sentence under U.S.S.G.
§ 3B1.4 for the use of a minor in the offense. Finally, Regalado argues that his
25-year sentence is substantively unreasonable.
      This court generally reviews the district court’s interpretation and
application of the Sentencing Guidelines de novo and examines its factual
findings for clear error. United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.
2006). However, if a defendant raises an objection for the first time on appeal,
or raises an objection that is different from the one he raised in the district
court, review is for plain error only. United States v. Juarez, 626 F.3d 246,
253-54 (5th Cir. 2010).
      Regalado objected to the enhancement for the use of a minor, but he did
not object to the organizer/leader enhancement or to the district court’s failure
to afford him a mitigating role reduction. Therefore, his remaining Sentencing
Guidelines issues are reviewed only for plain error.
      The adopted factual findings from the presentence report reveal that
Regalado was the one whom “Mario,” the foreign supplier, contacted regarding
incoming drug shipments. Regalado negotiated drug transactions, including
one for the purchase of 1 kilogram of methamphetamine for $31,000. He
dispatched “runners” to deliver drugs to buyers, to pick up money from buyers,
and to pick up couriers from the bus station. This court has affirmed the
application of the § 3B1.1(a) enhancement under similar facts. See, e.g., United
States v. Cantu-Ramirez, 669 F.3d 619, 629-30 (5th Cir. 2012) (upholding
application of organizer/leader enhancement based, in part, on evidence that
the defendant instructed drivers who transported drugs regarding where and




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                                       No. 15-30929

when to go, that he told them to check with him, and that he oversaw the
distribution of large quantities of drugs). 1
       Regalado was properly classified as an organizer/leader for purposes of
§ 3B1.1(a). For the same reasons Regalado was a leader, he was not a minor
participant, thus he was necessarily ineligible for a “minor role” reduction
under § 3B1.2, and the district court did not err in refusing the reduction. See
United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005).
       Regalado concedes on appeal that the drugs he received were “sometimes
delivered by minor couriers,” but he contends that the enhancement should not
apply because the decision to use the minor was made by his supplier, not him.
Although the § 3B1.4 enhancement does not apply if the minor is “merely
present” at the scene of the crime, it does apply if the defendant “take[s] some
affirmative action to involve the minor in the offense.” United States v. Andres,
703 F.3d 828, 835 (5th Cir. 2013) (citation omitted). By accepting the drugs
from the minor, Regalado took the kind of “affirmative action” that involved
the minor in the offense. See id.
       Finally, Regalado argues that his 25-year sentence is substantively
unreasonable.       In this circuit, sentences within or below the calculated
Guidelines range are presumed reasonable. United States v. Simpson, 796


       1  The district court engaged in a lengthy colloquy during sentencing analogizing the
drug ring in which Regalado operated to a corporation with offices and various employees.
Throughout the hearing, the district court asserted that Regalado was a “leader of his
division” and a mid-level manager although not the overall leader of the “organization.”
Regalado seizes on this discussion to argue that the district court did not find that he was a
leader under the guidelines. We conclude that the district court’s statements, in context, are
not inconsistent with the four-level enhancement applied. At most for Regalado, these
comments might support an argument for a three-level, rather than four-level, enhancement.
Regalado does not argue that he should have received a manager, rather than leader,
enhancement (three-level vs. four-level). This is probably because the resulting guidelines
range (360 months to life) would continue to be well above the sentence given. Particularly
in light of the district court’s statement that it would give this sentence even if there had
been an error in the guidelines calculation, we do not find plain error here.


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F.3d 548, 558 (5th Cir. 2015), cert. denied, 136 S. Ct. 920 (2016). Regalado has
failed to rebut the presumption of reasonableness that attaches to a below-
Guidelines sentence or show that his sentence is substantively unreasonable.
See id.
      For the forgoing reasons, we AFFIRM.




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