     Case: 16-41146         Document: 00514097657      Page: 1    Date Filed: 08/01/2017




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

                                      No. 16-41146                              FILED
                                                                           August 1, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

RUTH RAMIREZ-ESPARZA,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-135-1


Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant appeals the district court’s denial of a mitigating
role adjustment under U.S.S.G. § 3B1.2. We affirm.
                       I.        Procedural & Factual History
       In February 2016, Border Patrol agents observed a Chevrolet Suburban
driving towards the Rio Grande. After the Suburban stopped near the river, a
man approached and opened the rear doors. Six men, each carrying a large
bundle, began walking towards the Suburban from the brush.                              Agents



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41146
approached and saw that the driver was female. The Suburban drove away at
a high rate of speed before any of the bundles were loaded. The men abandoned
their bundles and fled back towards the Rio Grande. A total of 163.7 kilograms
(“kgs”) of marijuana was recovered.
      Agents tracked the Suburban to a nearby restaurant and spoke with the
driver, Defendant-Appellant Ruth Ramirez-Esparza. She admitted to driving
the Suburban to pick up the marijuana, which she then was supposed to deliver
to an unknown location. In Ramirez-Esparza’s post-arrest statement, she said
that she had been hired by Juan Hernandez to retrieve the marijuana.
Ramirez-Esparza explained that Hernandez worked for Jose Quintero-
Alvarado, who was supposed to pay her $2,500. She stated that Hernandez
left the Suburban at her home the night before her arrest and instructed her
to follow a white pickup truck to another location after retrieving the
marijuana. Ramirez-Esparza also admitted that, approximately one week
earlier, she successfully retrieved five bundles of marijuana from the same
location for Quintero-Alvarado.
      Ramirez-Esparza ultimately pleaded guilty to possession with intent to
distribute   approximately   163.7    kgs   of   marijuana.    The   Presentence
Investigation Report (“PSR”) assessed a base offense level of 24. The PSR
noted that Ramirez-Esparza had no supervisory authority, but it did not
recommend a mitigating role adjustment because her role as a “drug courier
was essential in the perpetration of the offense.”         The PSR calculated a
Guidelines range of 37 to 46 months’ imprisonment, but it also found that
Ramirez-Esparza was subject to a mandatory minimum sentence of 60 months’
imprisonment.    The PSR further noted, however, that if she received the
benefit of the “safety valve” provisions, Ramirez-Esparza’s Guidelines range
would be 30 to 37 months’ imprisonment and she would not be subject to the
mandatory minimum sentence.
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                                   No. 16-41146
      Ramirez-Esparza filed written objections to the PSR’s recommendation
against awarding a minor role adjustment. She argued that she was one of
several participants in the offense; she had been recruited by others; her role
was limited to transporting marijuana in the Brownsville, Texas area; she did
not have an ownership interest in either the marijuana or the Suburban; and
she did not have any decision-making authority. Ramirez-Esparza reurged
these objections at sentencing. The Government agreed at sentencing that she
was a minor participant.
      Nevertheless, the district court disagreed and expressed concern that
Ramirez-Esparza had engaged in similar conduct on at least one prior occasion.
It denied an adjustment, stating that “I think if you do something more than
once and are active in a series of crimes, you’re not playing a minor role.” The
district court did grant relief under the “safety valve” provisions though, and
reduced her applicable Guidelines range to 30 to 37 months. The district court
imposed a sentence of 30 months’ imprisonment with a 3-year term of
supervised release. The district court also allowed Ramirez-Esparza a week to
settle her family affairs before voluntarily surrendering into custody.
Ramirez-Esparza filed this appeal.
                            II.    Standard of Review
      A district court’s denial of a mitigating role adjustment and its factual
determination as to whether a defendant was a minor participant is reviewed
for clear error. United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
“A factual finding is not clearly erroneous if it is plausible in light of the record
read as a whole.” Id.
                                  III.   Discussion
      On appeal, Ramirez-Esparza challenges the district court’s refusal to
grant a mitigating role adjustment.          Section 3B1.2 “provides a range of
adjustments for a defendant who plays a part in committing the offense that
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                                 No. 16-41146
makes him substantially less culpable than the average participant in the
criminal activity.” U.S.S.G. § 3B1.2 cmt. 3(A). The defendant has the burden
of demonstrating entitlement to a mitigating role adjustment. United States
v. Perez-Solis, 709 F.3d 453, 471 n.57 (5th Cir. 2013). The decision whether to
apply Section 3B1.2 is “based on the totality of the circumstances and involves
a determination that is heavily dependent upon the facts of the particular
case.” U.S.S.G. § 3B1.2 cmt. 3(C).
      Amendment 794, which was in effect at the time Ramirez-Esparza was
sentenced, augmented the commentary to Section 3B1.2 by providing a
“nonexhaustive list of factors” to be considered in making a mitigating role
assessment. U.S. Sentencing Guidelines Manual app. C, amend. 794 (U.S.
Sentencing Comm’n Supp. 2015). These factors include (i) “the degree to which
the defendant understood the scope and structure of the criminal activity”; (ii)
“the degree to which the defendant participated in planning or organizing the
criminal activity”; (iii) “the degree to which the defendant exercised decision-
making authority or influenced the exercise of decision-making authority”; (iv)
“the nature and extent of the defendant’s participation in the commission of
the criminal activity, including the acts the defendant performed and the
responsibility and discretion the defendant had in performing those acts”; and
(v) “the degree to which the defendant stood to benefit from the criminal
activity.” U.S.S.G. § 3B1.2 cmt. 3(C)(i)-(v). Two additional provisions follow
the list of factors. The first states, as an example, that “a defendant who does
not have a proprietary interest in the criminal activity and who is simply being
paid to perform certain tasks should be considered for an adjustment.” Id. §
3B1.2 cmt. 3(C). The second provides that a defendant who “performs an
essential or indispensable role in the criminal activity . . . may receive an
adjustment under [§ 3B1.2] if he or she is substantially less culpable than the
average participant in the criminal activity.” Id.
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                                       No. 16-41146
       According to Ramirez-Esparza, the district court denied the minor role
adjustment for the sole reason that she had admitted to retrieving marijuana
on a previous occasion and thus the court erred in failing to consider the non-
exhaustive list of factors contained in Amendment 794. She complains that
had she received the adjustment, her total offense level would have been 17,
yielding a Guidelines range of 24 to 30 months’ imprisonment. Since both the
district court and parties agreed that she should receive a sentence at the low
end of the advisory Guidelines range, her sentence would likely have been 24
months without the alleged error. She further contends that the Government
cannot meet its burden to show that the district court would have imposed the
same sentence had it not erred. We disagree and conclude that the district
court did not err in declining to award the mitigating role adjustment.
       Ramirez-Esparza argues that the district court’s statement during
sentencing that she had engaged in similar conduct on another occasion, is not
a listed factor precluding a reduction. Although the district court did state at
sentencing that Ramirez-Esparza had engaged in similar conduct on another
occasion and this is not a listed factor to consider for a reduction, 1 the list of
factors provided is “non-exhaustive” and does not preclude consideration of
other factors.     See U.S.S.G. § 3B1.2 cmt. 3(C); United States v. Torres-
Hernandez, 843 F.3d 203, 209 (5th Cir. 2016) (describing the list in Section
3B1.2’s commentary as “nonexclusive” and “only factors”). Further, in light of
Ramirez-Esparza’s admission that she had recently committed a similar
offense with at least one other person involved in the instant offense, the
district court did not err by considering this factor.



       1As the Government points out, this court’s precedent indicates that it is not improper
for a district court to consider a defendant’s repeated criminal activity in determining
whether to grant a minor role adjustment. United States v. Castro, 843 F.3d 608, 614 (5th
Cir. 2016).
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                                         No. 16-41146
       Ramirez-Esparza also argues that the district court erred by focusing on
this one factor rather than considering all of the listed factors. We disagree.
A district court is “not required to expressly weigh each factor in § 3B1.2 on
the record.” Torres-Hernandez, 843 F.3d at 209. The record reveals that the
district court was presented with facts and arguments implicating other listed
factors both in the PSR documents, Ramirez-Esparza’s written objections to
the PSR, and at sentencing.             See id. at 209–10 (finding that defendant’s
objections and the arguments of the parties adequately placed the issues before
the court); United States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016) (same).
Regardless, the fact that the district court mentioned Ramirez-Esparza’s
admission of her previous criminal activity does not indicate that this was the
sole factor the district court considered in denying the minor role adjustment. 2
       Moreover, the ultimate issue here is whether Ramirez-Esparza was
“substantially less culpable than the average participant in the criminal
activity.” U.S.S.G. § 3B1.2 cmt. 3(A) (emphasis added); see also Castro, 843
F.3d at 613 (holding that the defendant was not entitled to an adjustment
because she failed to show the culpability of the average participant and failed
to show that she was substantially less culpable than the average participant);
United States v. Miranda, 248 F.3d 434, 446–47 (5th Cir. 2001) (stating that a
Section 3B1.2 adjustment is not warranted simply because a defendant “does
less than other participants”). Here, the only other participants identified in


       2  We also note that the district court adopted the PSR, which found that Ramirez-
Esparza’s conduct did not warrant an adjustment because she “was essential in the
perpetration of the offense.” While the new commentary to the amendment indicates that an
“essential role” finding alone should not preclude an adjustment, it does not prohibit a district
court from considering this as a factor. See U.S.S.G. § 3B1.2 cmt. 3(C) (providing that a
defendant who plays an essential role “may receive” an adjustment); Castro, 843 F.3d at 612–
13 (holding that an integral role determination was “still part of § 3B1.2’s analysis” and that
a district court “does not err by taking into account a defendant’s integral role in an offense .
. . as long as her role is not the sole or determinative factor in its decision”). Accordingly, the
district court’s adoption of the PSR was proper.
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                                      No. 16-41146
the instant offense were the six men carrying bundles of marijuana, the person
driving the pickup truck that Ramirez-Esparza was supposed to follow,
Hernandez, and Alvarado-Quintero.                Ramirez-Esparza was arguably less
culpable than Hernandez, who hired her, gave her instructions, and delivered
the Suburban to her home. She was also arguably less culpable than Quintero-
Alvarado, who employed Hernandez, would pay Ramirez-Esparza her fee, and
according    to   Ramirez-Esparza,         owned     the   marijuana.      The    “average
participant” though, would include the six men who carried the individual
marijuana bundles that Ramirez-Esparza was directed to retrieve. Ramirez-
Esparza’s role was to transport all of the individual bundles, in one aggregated
load totaling approximately 163.7 kgs of marijuana, away from the border to a
location further inside the United States. Because she was responsible for
transporting a greater quantity of marijuana than any of the individual men,
she was more culpable than the “average participant.” 3 Considering these
facts and circumstances, we hold that the district court did not err in declining
to grant the minor role adjustment since Ramirez-Esparza was not
“substantially less culpable than the average participant” in the offense.
U.S.S.G. § 3B1.2 cmt. 3(A); Castro, 843 F.3d at 613.
                                     IV.    Conclusion
       For the foregoing reasons, the sentence imposed by the district court is
affirmed in all respects.




       3Ramirez-Esparza’s arguments that she was a part of a larger conspiracy, had no
proprietary interest in the marijuana, was not involved with the “importation” of the
marijuana, had no knowledge of the structure or scope of the enterprise, and had no role in
the planning of the offense or any discretionary authority are not dispositive here. Assuming
arguendo that her assertions are true, for the reasons previously discussed herein, these
considerations do not support a determination that she was “substantially less culpable than
the average participant” in the instant offense. Castro, 843 F.3d at 613.
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