     Case: 18-10652      Document: 00514971086         Page: 1    Date Filed: 05/24/2019




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

                                                                                FILED
                                    No. 18-10652                            May 24, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALEXANDER LEE SALAZAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-265-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Alexander Lee Salazar appeals his 220-month sentence imposed
following his guilty plea to possession with intent to distribute a controlled
substance. Salazar argues that the district court clearly erred in failing to
reduce his offense level for a mitigating role in the criminal activity. “Whether
[a defendant] was a minor or minimal participant” under U.S.S.G. § 3B1.2 “is
a factual determination that [this court] review[s] for clear error.” United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10652     Document: 00514971086      Page: 2   Date Filed: 05/24/2019


                                  No. 18-10652

States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (internal quotation
marks and citation omitted). “A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.” Id. (internal quotation marks
and citation omitted). The defendant has the burden of demonstrating his
entitlement to a minor or minimal role adjustment. United States v. Castro,
843 F.3d 608, 612 (5th Cir. 2016).
      The evidence in the record reflects that Salazar admitted that on four
occasions he illegally transported significant amounts of methamphetamine
into different areas of the United States for distribution. The evidence also
showed that he intended to continue to engage in the activity and that he would
be obtaining methamphetamine from the initial source of the drugs. While
Salazar may not have been an organizer or a decisionmaker with respect to the
criminal activity, based on the totality of the circumstances, the district court’s
determination that Salazar failed to demonstrate that he was entitled to a
reduction of his offense level for a mitigating role was plausible and did not
constitute clear error. See U.S.S.G. § 3B1.2, comment. (n.3(C)); United States
v. Bello-Sanchez, 872 F.3d 260, 264-65 (5th Cir. 2017); Gomez-Valle, 828 F.3d
at 327.
      Next, Salazar argues that the district court clearly erred in failing to
reduce his offense level for the acceptance of responsibility. He contends that
he pleaded guilty in a timely manner, he did not falsely deny relevant conduct,
and he provided compelling explanations for most of his violations of his
pretrial release.
      The district court’s decision to deny a reduction for acceptance of
responsibility will be affirmed “unless it is without foundation, a standard of
review more deferential than the clearly erroneous standard.” United States
v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (internal quotation marks



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                                   No. 18-10652

and citation omitted). While entering a guilty plea and truthfully admitting
criminal   conduct   “constitute    significant   evidence    of   acceptance     of
responsibility,” such “evidence may be outweighed by conduct of the defendant
that is inconsistent with such acceptance of responsibility.” U.S.S.G. § 3E1.1,
comment. (n.3). “The district court may properly deny a reduction for
acceptance of responsibility for failure to refrain from criminal conduct while
on pretrial release.” United States v. Rickett, 89 F.3d 224, 227 (5th Cir. 1996).
      Salazar tested positive for the use of methamphetamine in violation of
the conditions of his pretrial release. The district court’s decision to deny
Salazar a reduction of his offense level for the acceptance of responsibility was
not without foundation and was not clear error. See Juarez-Duarte, 513 F.3d
at 211. Salazar’s sentence is AFFIRMED.




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