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

                                                                            FILED
                                                                            July 24, 2013

                                       No. 12-10425                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
v.

MARICELA SANTOS,

                                                  Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                            U.S.D.C. No. 4:11-CR-147-1


Before STEWART, Chief Judge, and BARKSDALE and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       Defendant-Appellant Maricela Santos appeals the district court’s denial
of reductions in her United States Sentencing Guidelines (“Sentencing
Guidelines” or “U.S.S.G.”) offense level for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1 and minor role pursuant to U.S.S.G. § 3B1.2. We AFFIRM
in part, REVERSE in part, VACATE, and REMAND for resentencing.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10425

                             I. BACKGROUND
      Santos was arrested at the Dallas/Fort Worth International Airport
(“DFW”) after United States Customs and Border Protection agents discovered
drugs hidden in the lining of her purse. Santos subsequently pleaded guilty,
without a plea agreement, to possession with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii).
Santos signed a factual resumé admitting the elements of her crime and
participated in a proffer interview with the Government. The parties agreed
that any self-incriminating information that Santos disclosed during the proffer
interview would not be used in determining any applicable Sentencing
Guidelines range.
      The Presentence Investigation Report (“PSR”) stated that the Drug
Enforcement     Administration     laboratory    results   showed     that    the
methamphetamine found in Santos’s purse had a 98.6 percent purity rate. The
PSR assigned a two-level increase in Santos’s offense level pursuant to U.S.S.G.
§ 2D1.1(b)(5)(A) because Santos “agreed to act as a ‘drug mule’ for unknown
individuals in Mexico. The defendant was in possession of methamphetamine
that had been imported from Mexico” (the “importation enhancement”). The
PSR characterized Santos as an “average participant,” so it did not make an
adjustment for minor role pursuant to U.S.S.G. § 3B1.2.
      The PSR also assigned a two-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a), stating that Santos “has clearly
demonstrated acceptance of responsibility for the offense.” It assigned a further
one-level reduction for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1(b) because Santos “has assisted authorities in the investigation or
prosecution of the defendant’s own misconduct by timely notifying authorities
of the intention to enter a plea of guilty.” Thus, the PSR subtracted a total of
three levels from Santos’s base offense level due to her acceptance of

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                                  No. 12-10425

responsibility. Based on all of the adjustments, the PSR attributed a total
offense level of 31 to Santos.
      Santos objected to the two-level enhancement for the importation of
methamphetamine from Mexico. She did not contest the facts set forth in the
PSR, but argued that the evidence used to support the enhancement was
improperly derived from her proffer interview and that the undisputed facts in
the PSR were legally insufficient to support the finding that the
methamphetamine she possessed had been imported from Mexico. Specifically,
Santos noted that the PSR determined that the drugs were imported from
Mexico because Santos had agreed to act as a drug mule for individuals in
Mexico. She argued that this evidence was obtained solely from the proffer
interview in which she participated, the information from which could not be
used against her for sentencing purposes. She further argued that there was no
evidence in the record that she had obtained the drugs in Mexico. Even were the
proffer interview to be considered, the only evidence was that she had obtained
the drugs in Nogales, Arizona, from where she flew to DFW and was
apprehended.
      In a written response, the Government agreed that the PSR improperly
relied on Santos’s proffer interview to support its conclusion that the drugs were
imported from Mexico. It also agreed that there was insufficient evidence
independent of Santos’s proffered statement to support the importation
enhancement. Therefore, the Government stated that Santos’s adjusted offense
level, including a reduction for acceptance of responsibility and without
considering the improper importation enhancement, should be 29.
      The probation officer filed an addendum to the PSR, which disputed that
the importation enhancement relied on information obtained in the proffer
interview. Instead, it stated that when Santos was questioned by federal agents
at DFW, “she told agents that she had been living in Tijuana, Mexico, since May

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2001 [and t]hus by a preponderance of the evidence, it is reasonable to conclude
that the methamphetamine was imported from Mexico, which is where she was
living at the time of her arrest.” The addendum also noted that Santos’s travel
had been booked by the same travel agency that had been used by other
international drug traffickers and that she had been previously arrested for
importing marijuana from Mexico to California. Finally, the addendum declared
that “it is common knowledge among federal law enforcement that the
methamphetamine being supplied in the United States is imported from Mexico.
The defendant only confirmed, in her proffer interview, what government agents
already knew.” The addendum concluded that Santos “appears to be denying or
frivolously contesting her relevant conduct which is inconsistent with acceptance
of responsibility.”
      Santos also objected to the lack of a minor role reduction, arguing that the
evidence showed that she was a mere drug courier, and therefore should receive
a two-level reduction as a minor participant. The probation officer responded
that Santos was an average participant who was held accountable only for the
conduct in which she was directly involved, not for the illegal activity of a drug
organization.
      Prior to Santos’s sentencing hearing, the district court tentatively
concluded that the “information available to the court appears to establish by a
preponderance of the evidence that the methamphetamine involved in
defendant’s offense conduct was imported from Mexico.” In addition, the district
court tentatively concluded that Santos “has frivolously contested relevant
conduct [by objecting to the importation enhancement], as the probation officer
noted in the addendum, and that in doing so she has acted in a manner
inconsistent with acceptance of responsibility, with the consequence that she
should not receive a three-level reduction for acceptance of responsibility.”



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     At the sentencing hearing, both Santos and the Government reiterated
their concerns about the importation enhancement. The Government was
particularly vociferous in support of Santos’s objection, and the following
exchanges, among others, occurred between the district court and the
Government:
           THE COURT: What is the Government’s position as to
               where the drugs originated?

           [THE GOVERNMENT]: Your Honor, we don’t know.
                The facts of this case do not establish where those
                drugs came from. The only fact we have now is
                something we did gain in the proffer interview of
                Ms. Santos, which was she was handed that
                purse [containing the drugs] in Nogales, Arizona.
                She does not claim to know where those drugs
                came from. It’s possible they came from Mexico,
                but we simply don’t know.

           THE COURT: Okay. Of course, I’ll have to make the
               decision as to what the preponderance of the
               evidence establishes.

           [THE GOVERNMENT]: Absolutely, Your Honor. May
                I be heard further?

           THE COURT: Well, if you would like to be heard
               further.

           [THE GOVERNMENT]: The original PSR certainly
               appeared to use proffered information.

           THE COURT: I agree that the probation officer did, in
               explaining why there should be a two-level
               increase based on importation from Mexico, use
               proffer information, and she should not have
               done that.

           [THE GOVERNMENT]: Thank you, Your Honor. I
               agree. And because of that, I’m not sure this

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                           No. 12-10425

             issue [of importation of the drugs from Mexico]
             would have arisen in probation’s mind or in the
             Court’s mind. It didn’t arise in my mind until I
             saw, frankly, [Santos’s] objection [to the
             enhancement].
                                 ...

       [THE COURT]: So my tentative conclusion is that the
            preponderance of the evidence establishes that
            she brought these drugs from Mexico, or if she
            didn’t, somebody else did.

       [THE GOVERNMENT]: Your Honor has to come to a
            conclusion, and you certainly have the right and
            the ability to come to that conclusion, however, I
            would like to clarify that there is nothing that I
            have seen in this record—and I don’t believe it
            exists—that suggests she had that purse with
            methamphetamine in it when she crossed the
            border.

       THE    COURT: [Government counsel], do you
             understand the concept of circumstantial
             evidence?
                             ...

       [THE GOVERNMENT]: One more thing, Your Honor.
            Obviously, the Government has a huge problem
            with—or had a huge problem with the way this
            was coming down and made the appropriate
            objections.

       THE COURT: What do you have a problem—why does
           the Government have a problem with the way
           this is coming down? If a defendant frivolously
           contests relevant conduct, then the guidelines
           [sic] contemplate she won’t get acceptance of
           responsibility.
           Does the Government have a problem with that
           concept?



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                                    No. 12-10425

             [THE GOVERNMENT]: Not with the concept, Your
                 Honor, but with its application here. I don’t
                 believe the defendant or defense counsel is
                 frivolously contesting relevant conduct.1
                 As you said, Your Honor, you have to link up
                 circumstantial evidence to make this conclusion
                 that those drugs were imported from Mexico, and
                 it’s within defendant’s rights, Your Honor, to
                 challenge whether those links are sufficient.

             THE COURT: What has been your experience as to
                 where methamphetamine with almost 100
                 percent purity comes from when it’s found in
                 Texas?

             [THE GOVERNMENT]: I have no personal experience
                  with that, Your Honor.

      The district court then continued the hearing, ordering the Government
to bring its case agent to the next hearing.
      Just prior to the second sentencing hearing, the Government informed
Santos’s counsel of additional information supplied by the Government’s case
agent. The case agent reported that most drugs in Arizona come from Mexico
and that the travel agency that had booked Santos’s travel had also booked
travel for a previous defendant who had carried drugs from Mexico and was
associated with Nogales, Arizona. Based on this additional information, Santos
withdrew her objection to the importation increase, as did the Government. At
the subsequent hearing, the Government proffered the case agent’s testimony.
The district court then adopted the two-level importation increase, finding by a
preponderance of the evidence that the drugs Santos had been carrying had been
imported from Mexico.


      1
       On appeal, the Government now asserts that Santos’s objection was frivolous. The
Government has failed to provide any reason for its change in position.

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                                      No. 12-10425

       The district court also denied Santos the three-level acceptance-of-
responsibility reduction because “the very fact that she would contest that issue
and put everybody to the trouble that everybody has been put to, to deal with
that contest, causes me to conclude that she has not accepted responsibility.” In
other words, because Santos contested the sufficiency of the evidence underlying
the importation enhancement, the district court refused to grant her a reduction
for acceptance of responsibility. Consequently, Santos’s total offense level
increased from 31, as calculated in the original PSR, to 34.
       The district court also found that Santos was not entitled to a minor role
reduction. This appeal followed.
                                   II. DISCUSSION
A.     Acceptance of Responsibility2
       Santos argues that the district court erred when it denied her an offense-
level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. To
be clear, Santos does not challenge the district court’s determination that she
was subject to a two-level increase because the drugs she was carrying were
imported from Mexico. Instead, she challenges the district court’s refusal to
grant her a three-level decrease in her offense level for acceptance of
responsibility.     The initial PSR stated that Santos had fully accepted
responsibility such that she should receive the decrease. It was only after
Santos objected to the lack of evidence supporting the importation enhancement
that the probation officer suggested she was not accepting responsibility. The
district court’s comments demonstrate that Santos’s objection to the importation




       2
        Before the district court and on appeal, Santos argues that the sentence violates her
Sixth Amendment right to trial by jury and her Fifth Amendment rights to proof beyond a
reasonable doubt and to indictment. Santos concedes that circuit precedent forecloses this
claim. See United States v. Rhine, 583 F.3d 878, 891 (5th Cir. 2009).

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                                   No. 12-10425

enhancement was the sole reason for its refusal to grant Santos a decrease for
acceptance of responsibility.
      We review the district court’s interpretation of the Sentencing Guidelines
de novo and its factual findings for clear error. United States v. Brooks, 681 F.3d
678, 712 (5th Cir. 2012) (citation omitted). “While the district court’s findings
under the [S]entencing [G]uidelines are generally reviewed for clear error, a
determination whether a defendant is entitled to an adjustment for acceptance
of responsibility is reviewed with even greater deference.” United States v.
Buchanan, 485 F.3d 274, 287 (5th Cir. 2007). Santos bears the burden of
demonstrating that she is entitled to this reduction. United States v. Perez, 915
F.2d 947, 950 (5th Cir. 1990). We “affirm a sentencing court’s decision not to
award a reduction under U.S.S.G. § 3E1.1 unless it is without foundation.”
United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002) (internal quotation
marks and citation omitted).
      Pursuant to U.S.S.G. § 3E1.1, a defendant may receive a two- or three-
level reduction in offense level if he “clearly demonstrates acceptance of
responsibility for his offense.” “If a defendant enters a guilty plea prior to trial,
truthfully admits the conduct comprising the offense, and admits, or at least
does not falsely deny, any additional relevant conduct for which he is
accountable, the court may find significant evidence of the defendant’s
acceptance of responsibility.” United States v. Medina-Anicacio, 325 F.3d 638,
648 (5th Cir. 2003) (citation omitted). A defendant is “not required to volunteer
or affirmatively admit relevant conduct beyond the conviction offense.” United
States v. Patino-Cardenas, 85 F.3d 1133, 1135 (5th Cir. 1996). However, a
defendant may not “falsely deny or frivolously contest relevant conduct that the
court determined to be true.” Id. (citation omitted).




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                                     No. 12-10425

      There is no dispute that Santos entered her guilty plea prior to trial and
truthfully admitted the conduct comprising the offense.3 We also observe that
importing drugs from Mexico was not an element of the crime with which Santos
was charged. Therefore, the alleged international provenance of the drugs
constituted additional conduct relevant to the offense rather than conduct
comprising the offense charged. See id. at 1136. Accordingly, Santos did not
have to admit that the drugs came from Mexico, but neither could she falsely
deny it. Santos did not deny the drugs came from Mexico. Rather, she made two
legal objections to the importation enhancement: (1) that the PSR improperly
relied on information obtained during the proffer session and (2) that the
evidence in the record was insufficient to support the enhancement. Therefore,
our inquiry is whether the district court committed reversible error by
characterizing these objections as “frivolous” and inconsistent with acceptance
of responsibility.
      U.S.S.G. § 3E1.1 does not define a “frivolous[] contest[],” so we use the
plain meaning of the words.          Black’s Law Dictionary defines frivolous as
“[l]acking a legal basis or legal merit; not serious; not reasonably purposeful.”
Black’s Law Dictionary 739 (9th ed. 2009); accord Neitzke v. Williams, 490 U.S.
319, 327 (1989) (holding that a complaint is legally frivolous if it is based on an
“indisputably meritless legal theory”); Biliski v. Harborth, 55 F.3d 160, 162 (5th
Cir. 1995) (citations omitted) (“A complaint is frivolous if it lacks an arguable
basis in law or in fact.”).
      With respect to Santos’s first objection, we observe that the district court
agreed with Santos that the PSR improperly relied on the information obtained



      3
          The indictment charged Santos with possession with intent to distribute
methamphetamine, to which she pleaded guilty and the elements of which she admitted in a
factual resumé. No one disputes that Santos adequately admitted the conduct comprising her
offense.

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                                       No. 12-10425

in the proffer session to support the importation enhancement. It is axiomatic
that an objection cannot be frivolous if the district court agrees with the grounds
for the objection.
        As to Santos’s challenge as to the sufficiency of the evidence, we also hold
that it was not frivolous.4 There was insufficient original, non-proffer evidence
in the record that the drugs at issue here had been imported from Mexico. To
the contrary, the only original, non-proffer evidence in the record as to the origin
of the drugs was that Santos had received them in Arizona.                        In the first
sentencing hearing, the Government admitted that no such original, non-proffer
evidence existed and disagreed with the district court that the circumstantial
evidence indicated that the drugs had been imported from Mexico. When
additional evidence linking the drugs to Mexico was presented after the first
hearing, Santos withdrew her objection.
        We have previously stated that “merely pointing out that the evidence does
not    support    a    particular    upward       adjustment       or     other    sentencing
calculation, does not strike us as a legitimate ground for ruling that the
defendant has not accepted responsibility.” United States v. Nguyen, 190 F.3d
656, 659 (5th Cir. 1999) (citation omitted), recognized as abrogated on other
grounds by United States v. Dunigen, 555 F.3d 501 (5th Cir. 2009). There may
be some cases in which a defendant’s challenge of the sufficiency of the evidence
is a frivolous contest or a false denial of the facts of the relevant conduct, but this
is not one of those cases. Based on the facts in the record, it was not frivolous
for Santos to raise an objection designed to ensure that the Government properly
met its burden of proof concerning a factual determination with which she had



        4
         On appeal, Santos also urges that her challenge to the lack of a minor role reduction
provided an independent ground for her challenge as to the propriety of the importation
increase. As we hold that Santos’s challenge as to the sufficiency of the evidence was not
frivolous, we need not consider this alternative ground for reversal.

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                                  No. 12-10425

not been indicted. The record shows that the district court denied Santos
acceptance of responsibility merely because she objected to the sufficiency of the
evidence supporting the importation enhancement. We hold this denial to be
without foundation. See Solis, 299 F.3d at 458.
      Our holding is consistent with our precedent.         We previously have
determined that a district court erred in failing to grant a defendant an
acceptance-of-responsibility reduction. In Patino-Cardenas, the defendant’s
admission was silent as to additional conduct alleged by the Government that
was not charged in the indictment. 85 F.3d at 1136. This court reversed the
district court’s determination that the defendant had failed to accept
responsibility, and we vacated the sentence. Id. at 1137. We concluded that the
defendant had not denied any of the facts stated in the PSR but had objected to
the “legal characterization (leadership role) given his actions.” Id. at 1136. As
the defendant had “adequately admitted the conduct comprising the offense and
either admitted or did not falsely deny the additional relevant conduct identified
by the government,” we held that the district court’s refusal to grant a reduction
for acceptance of responsibility was without foundation. Id.
      In United States v. Fells, we vacated the defendant’s sentence where the
district court had refused to grant the defendant a reduction for acceptance of
responsibility because the defendant went to trial. 78 F.3d 168, 172 (5th Cir.
1996). The defendant was stopped at an airport and, upon questioning, admitted
that he had placed a pistol in his checked luggage. Id. at 170. He was arrested
and charged with being a felon in possession of a handgun. Id. Although the
defendant admitted the facts underlying the indictment, he went to trial where
he argued that the airline “possessed” the gun when it was stored in his checked
luggage and that venue was improper. Id. The defendant was convicted, and
during sentencing, the district court denied him a reduction for acceptance of



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                                      No. 12-10425

responsibility because he had put the prosecution to its burden of proof at trial.
Id. at 171.
       In vacating the sentence, this court noted that the defendant had “freely
admitted all the facts but challenged their legal interpretation.” Id. at 172.
Therefore, we held that, under the circumstances presented, the district court’s
refusal to consider a reduction for acceptance of responsibility merely because
the defendant had sought to hold the prosecutor to its burden of proof at trial
“impermissibly penaliz[ed the defendant] for asserting his constitutional right
to trial.” Id.
       Thus, in both Patino-Cardenas and Fells, we refused to permit a district
court to deny a defendant a reduction for acceptance of responsibility where the
defendant made only a legal objection and otherwise fulfilled U.S.S.G. § 3E1.1’s
requirements. Similarly, in the instant case, Santos promptly pleaded guilty to
the crime with which she was charged, adequately admitted the conduct
comprising the offense, participated in a proffer session with the Government,
at no point denied the additional relevant conduct, and, indeed, admitted the
conduct once the Government presented the additional evidence. She made only
a legal objection to a base level offense enhancement. Based on the record, we
hold this objection was not frivolous. The PSR assigned Santos a reduction for
acceptance of responsibility before her objection, and the district court gave no
other reason for denying Santos this reduction. Consequently, there was no
foundation for the district court’s refusal to grant a three-level adjustment for
acceptance of responsibility, and Santos must be resentenced.5 See Patino-
Cardenas, 85 F.3d at 1136.
B.     Minor Role


       5
         Santos requests that her case be remanded to a different judge for resentencing. We
do not find such a reassignment necessary under the factors identified in Simon v. City of
Clute, 825 F.2d 940, 943-44 (5th Cir. 1987), and so we deny this request.

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                                  No. 12-10425

      Santos argues that the district court based its denial of a two-level minor
role reduction in Santos’s base level offense on improper grounds. Specifically,
Santos argues that the district court viewed her as per se ineligible for the
reduction. We disagree.
      The district court adopted the PSR and its addendum, which stated:
            The defendant is an average participant. . . . The
            defendant was not held accountable for any illegal
            activities of a “drug organization,” but rather her
            conduct for which she is directly involved, namely,
            possession with intent to distribute methamphetamine.
            This is, at least, the second time she has acted as a
            drug courier. Thus, her role was not minor.

      At Santos’s second sentencing hearing, the district court stated:
            Well, I’m satisfied that her role was such that—she
            hadn’t satisfied me that her role was such that she
            should receive any reduced offense level because of her
            role. And I’m satisfied, on the other hand, that . . . her
            conduct was such that she should receive the role
            assigned to her in the presentence report . . . .

      Under U.S.S.G. § 3B1.2, a defendant who was a “minor participant in any
criminal activity” may have his offense level decreased by two levels.
Additionally, “[a] defendant who is accountable . . . only for the conduct in which
the defendant personally was involved and who performs a limited function in
concerted criminal activity is not precluded from consideration for an adjustment
under this guideline.” U.S.S.G. § 3B1.2 n.3(A). Additionally, the Sentencing
Guidelines note that “a defendant who is convicted of a drug trafficking offense,
whose role in that offense was limited to transporting or storing drugs . . . is not
precluded from consideration for an adjustment” under this Guideline. Id.
However, neither is a drug courier per se entitled to this reduction. “[A]
defendant may be a [drug] courier without being either a minimal participant
or a minor participant.” United States v. Gallegos, 868 F.2d 711, 713 (5th Cir.

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                                  No. 12-10425

1989) (citation omitted). Because the determination depends on the defendant’s
culpability, not the defendant’s status, “a defendant may be a courier without
being substantially less culpable than the average participant.” Id. Not every
courier is not entitled to receive a downward adjustment. Id.
      Here, the district court made a factual finding that Santos was not a minor
participant.   The district court noted that, inter alia, Santos had been
apprehended with a significant amount of methamphetamine and that she
previously had been apprehended while smuggling a significant quantity of
marijuana from Mexico to the United States, accompanied by her two young
children. The district court considered the defendant’s crime a serious one. Its
findings are not clearly erroneous.
                                III. CONCLUSION
      For the foregoing reasons, the district court’s determination that Santos’s
role in the offense did not justify a minor role reduction is AFFIRMED. The
district court’s determination that Santos failed to accept responsibility, which
justified its refusal to adjust downward three levels is REVERSED. Accordingly,
Santos’s sentence is VACATED, and the case is REMANDED for resentencing
consistent with this opinion.




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