                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4354


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NESTOR GUERRA-TELON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:13-cr-00631-HMH-5)


Submitted:   February 12, 2015            Decided:   February 25, 2015


Before MOTZ, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jerome Lee, TAYLOR LEE & ASSOCIATES, LLC, Norcross, Georgia, for
Appellant.   William N. Nettles, United States Attorney, Andrew
B. Moorman, Sr., Assistant United States Attorney, Greenville,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A   jury    convicted   Nestor     Guerra-Telon           of    conspiracy      to

possess with intent to distribute and to distribute cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (2012).                            The

district court imposed a sentence of 140 months.                             On appeal,

Guerra-Telon challenges his sentence.                We affirm.

       First, Guerra-Telon argues that the district court erred

when it used a drug quantity of 3.5 to five kilograms of cocaine

to set his base offense level at thirty.                    See U.S. Sentencing

Guidelines Manual § 2D1.1(c)(5) (drug quantity table) (2013).                            A

district      court’s   drug   quantity           determination        is    a   factual

finding reviewed for clear error.                   United States v. Mann, 709

F.3d 301, 304 (4th Cir. 2013).

       “For   sentencing   purposes,          the   government        must   prove     the

drug    quantity     attributable    to       a     particular    defendant       by    a

preponderance of the evidence.”               United States v. Bell, 667 F.3d

431, 441 (4th Cir. 2011).           “Where there is no drug seizure or

the amount seized does not reflect the scale of the offense, the

court      shall    approximate     the        quantity    of         the    controlled

substance.”        USSG § 2D1.1 cmt. n.5.            A district court may rely

on witness testimony to approximate the drug quantity; however,

“when the approximation is based only upon ‘uncertain’ witness

estimates, district courts should sentence at the low end of the

range to which the witness[] testified.”                  Bell, 667 F.3d at 441

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(internal quotation marks omitted).                  Applying these standards to

the record before us, we perceive no clear error in the district

court’s drug quantity finding.

       Second, Guerra-Telon argues that the district court erred

in denying him a two-level mitigating role adjustment pursuant

to USSG § 3B1.2(b).            “The defendant bears the burden of proving,

by a preponderance of the evidence, that he is entitled to a

mitigating role adjustment in sentencing.”                        United States v.

Powell, 680 F.3d 350, 358-59 (4th Cir. 2012) (internal quotation

marks    omitted).         A     district        court’s    determination       that     a

defendant has not demonstrated his entitlement to a mitigating

role adjustment is a factual finding reviewed for clear error.

Id.     at   359.      A      two-level      mitigating        role     adjustment     is

appropriate      for   a   defendant      “who     is   less    culpable      than    most

other participants, but whose role could not be described as

minimal.”       USSG § 3B1.2 cmt. n.5.                  “The critical inquiry in

determining whether a defendant is entitled to an adjustment for

his role in the offense is not just whether the defendant has

done    fewer   bad    acts     than   his   co-defendants,           but   whether    the

defendant’s conduct is material or essential to committing the

offense.”       United States v. Dawson, 587 F.3d 640, 646 (4th Cir.

2009) (internal quotation marks omitted).

       Guerra-Telon argues that he was entitled to an adjustment

because he was merely a drug courier.                      A defendant’s role as a

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drug courier, however, “does not automatically entitle him to a

reduction under Guideline § 3B1.2” because a drug courier is not

necessarily      “less     culpable      than     other    members    of   a     drug

organization.”          United States v. White, 875 F.2d 427, 434 (4th

Cir.    1989)    (internal      quotation       marks    omitted).     Here,     the

testimony     permitted     the   conclusion      that    Guerra-Telon     was    not

“less culpable than most other participants.”                    Therefore, the

district court did not clearly err when it denied Guerra-Telon’s

request for a mitigating role adjustment.

       Accordingly,       we    affirm    Guerra-Telon’s        sentence.         We

dispense with oral argument because the parties agree that the

facts   and     legal    contentions     are    adequately    presented     in    the

materials     before     this   Court    and    argument    would    not   aid    the

decisional process.

                                                                           AFFIRMED




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