     Case: 09-10919     Document: 00511066663          Page: 1    Date Filed: 03/30/2010




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

                                                  FILED
                                                                           March 30, 2010
                                     No. 09-10919
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ETELVINA QUINTANILLA, also known as Telvi Quintanilla,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:09-CR-1-4


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Etelvina Quintanilla appeals the sentence imposed following her guilty
plea conviction for maintaining an illegal gambling business and aiding and
abetting. She argues that the district court clearly erred in refusing to grant a
two-level reduction in her offense level pursuant to U.S.S.G. § 3B1.2 for her
minor role in the offense.
        Quintanilla has not shown that the district court clearly erred in
determining that she was not entitled to a two-level reduction in her offense

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10919    Document: 00511066663 Page: 2        Date Filed: 03/30/2010
                                 No. 09-10919

level for a minor role in the offense. See United States v. Villanueva, 408 F.3d
193, 203-04 (5th Cir. 2005).       Quintanilla has not shown that she was
“substantially less culpable than the average participant” or that she was
“peripheral to the advancement of the illicit activity.” See id. In the factual
resume, she admitted that she supervised or directed employees of the business;
she obtained tax stickers on the slot machines in her name for codefendant
Javier Flores; she was paid ten dollars per hour by Flores; she was listed as the
manager of the business in one publication; and the electric bills for the
gambling business were listed in her name. She further admitted that the slot
machines paid out cash winnings and that the business was in continuous
operation for thirty days or more. She also admitted to the probation officer that
she knew the gambling business was illegal.
      Quintanilla’s admissions show that she was not less culpable than the
average participant or peripheral to the advancement of the illegal gambling
business. See Villanueva, 408 F.3d at 203-04. A defendant who is not charged
or sentenced based on being part of a larger conspiracy or criminal activity is
generally not entitled to a mitigating role reduction under Section 3B1.2. See
United States v. Washington, 480 F.3d 309, 313 n.10 (5th Cir. 2007). Because
Quintanilla’s role was coextensive with the conduct for which she was convicted,
she was not entitled to a minor role reduction even if her activities in the larger
criminal conspiracy or activity may have been less than her codefendants. See
id.; see also United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001).
      AFFIRMED.




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