     Case: 11-40432     Document: 00511747643         Page: 1     Date Filed: 02/03/2012




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

                                                                            FILED
                                                                         February 3, 2012
                                     No. 11-40432
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JAIME GARCIA-TREJO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-1826-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Jaime Garcia-Trejo pleaded guilty to: conspiracy to possess, with intent
to distribute; possession, with intent to distribute; and, importation of more than
5 kilograms of cocaine and more than 500 grams of methamphetamine. He was
sentenced, inter alia, to 151-months’ imprisonment. He challenges both his
convictions and sentence.
        As for his convictions, Garcia-Trejo contends there was an insufficient
factual basis for his guilty plea because the Government did not prove he knew

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40432

the type and quantity of the drugs he was carrying. Garcia-Trejo concedes this
contention is foreclosed by United States v. Betancourt, 586 F.3d 303, 308-09 (5th
Cir. 2009), and presents it in order to preserve it for possible further review.
      Turning to the sentence, although post-Booker, the Sentencing Guidelines
are advisory only, and an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the Guidelines-sentencing range for use in deciding on the sentence to
impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, its
application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Garcia-Trejo contends the district court erred in not reducing his offense
level by two pursuant to Guideline § 3B1.2 (mitigating role in offense) because,
as a courier, he had a minor role in the offense. Even assuming this contention
was preserved in district court, it fails. To warrant that reduction, defendant
must be “peripheral to the advancement of the criminal activity”. United States
v. Martinez-Larraga, 517 F.3d 258, 272 (5th Cir. 2008). The district court did
not clearly err in finding that Garcia-Trejo’s role in transporting more than
$500,000 of cocaine and methamphetamine was not peripheral, but rather, as
important to the criminal enterprise as the roles of producing, packaging, and
concealing the contraband. See United States v. Jenkins, 487 F.3d 279, 282 (5th
Cir. 2007) (court did not clearly err in not reducing offense level because
“defendant may be a courier without being . . . a minor participant”) (citation and
internal quotation marks omitted).
      Garcia-Trejo also contends the district court erred in not reducing his
offense level by one pursuant to Guideline § 3E1.1(b) (acceptance of
responsibility) because the Government may not decline to move for that
additional one-level reduction on the ground that defendant refused to waive his
right to appeal. Garcia-Trejo concedes this contention is foreclosed by United

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                                  No. 11-40432

States v. Newson, 515 F.3d 374, 378-79 (5th Cir. 2008). He presents it in order
to preserve it for possible further review.
      Garcia-Trejo also maintains the district court failed to give an adequate
explanation for the sentence. The court considered carefully the circumstances
of Garcia-Trejo’s case in the light of the 18 U.S.C. § 3553(a) sentencing factors
in determining and explaining the sentence. See Rita v. United States, 551 U.S.
338, 356-57 (2007) (“when a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy explanation”). The
sentence is procedurally sound.
      Citing Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), Garcia-
Trejo contends his sentence is substantively unreasonable because the
methamphetamine Guidelines lack an empirical basis. Whatever discretion
Kimbrough gives district courts to deviate from the Guidelines, it does not
require either district or appellate courts to conduct “a piece-by-piece analysis
of the empirical grounding behind each part of the sentencing guidelines”.
United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009).
      Finally, Garcia-Trejo contends the within-Guidelines sentence is
substantively unreasonable because the district court did not give adequate
weight to his low level of culpability and the aberrant nature of the offense,
given his otherwise clean record. When, as here, a district court imposes a
sentence within a properly calculated Guidelines-sentencing range, the sentence
is entitled to a presumption of reasonableness. United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006). Garcia-Trejo has not shown the district court failed to
give proper weight to any § 3553(a) factor. United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).
      AFFIRMED.




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