     Case: 17-50191      Document: 00514295997         Page: 1    Date Filed: 01/05/2018




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

                                    No. 17-50191                                FILED
                                  Summary Calendar                        January 5, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODNEY JEROME,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:16-CR-68-20


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Rodney Jerome appeals his guilty plea conviction and sentence for
conspiracy to possess with intent to distribute methamphetamine. In his first
assignment of error, he argues that the district court plainly erred by
encouraging him to waive reading of the indictment at rearraignment, that the
court likewise failed to have his factual basis read into the record, and that the
court’s statements at rearraignment demonstrate its unfamiliarity with his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50191

indictment and factual basis. In light of this, Jerome argues that the court
failed to satisfy itself “subjectively” that there was a sufficient factual basis to
support his plea, violating Federal Rule of Criminal Procedure 11(b)(3) and his
due process rights.
      Jerome’s attempt to recast his Rule 11 claim as a due process claim is
invalid. See United States v. Scott, 587 F. App’x 201, 202 (5th Cir. 2014). The
record indicates that Jerome received his indictment and understood the
charges against him and that he reviewed his factual basis with defense
counsel, who raised Jerome’s concerns with the factual basis at rearraignment.
Any omission at rearraignment was, at best, harmless and did not affect
Jerome’s substantial rights. See United States v. Lee, 694 F. App’x 318, 318-
19 (5th Cir.), cert. denied, 2017 WL 4099741 (Oct. 30, 2017) (No. 17-5972); see
also United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
      The factual basis, moreover, was sufficiently specific to allow the district
court to determine that Jerome’s conduct fell within the ambit of a 21 U.S.C.
§ 846 drug conspiracy. See United States v. Rodriguez, 831 F.3d 663, 666 (5th
Cir. 2016), cert. denied, 137 S. Ct. 675 (2017). Jerome has shown no clear or
obvious error. See Broussard, 669 F.3d at 546; Scott, 587 F. App’x at 202.
      In his second assignment of error, Jerome argues that the district court
erred in denying a mitigating role adjustment under U.S.S.G. § 3B1.2(a). In
support of this claim, Jerome contends that he was substantially less culpable
than the average participant and that the district court erred by relying on an
outdated version of the Sentencing Guidelines, misunderstanding the law on
conspiracy, and erroneously finding at sentencing that he stored drugs for
more than one person and hid guns.
      Notwithstanding Jerome’s arguments, the district court’s factual finding
that Jerome was not a minimal or minor participant in the conspiracy was



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                                 No. 17-50191

plausible in light of the whole record. See United States v. Sanchez-Villarreal,
857 F.3d 714, 721 (5th Cir. 2017). At sentencing, the court adopted the factual
findings in the presentence report. See United States v. Alaniz, 726 F.3d 586,
619 (5th Cir. 2013). In light of Jerome’s factual basis, the presentence report,
and the arguments of counsel at sentencing, the court weighed the non-
exhaustive factors set forth in the commentary of U.S.S.G. § 3B1.2 and rejected
the arguments in favor of a mitigating role adjustment. See United States v.
Torres-Hernandez, 843 F.3d 203, 209-10 (5th Cir. 2016).
      The record further shows that the district court identified the proper
standard in considering Jerome’s arguments, see United States v. Castro, 843
F.3d 608 613 (5th Cir. 2016), and the court’s statements do not reference an
older version of the Sentencing Guidelines, indicate reliance on an outdated
version, or show a misunderstanding of conspiracy law, see, e.g., United States
v. Haines, 803 F.3d 713, 740 (5th Cir. 2015). Furthermore, even if it is assumed
that the court’s statements regarding Jerome storing drugs for more than one
person and hiding guns constituted clear or obvious error, Jerome has shown
no affect on his substantial rights as he observes only that § 3B1.2’s
commentary permits an adjustment when a defendant has stored drugs.
Although the guideline commentary provides that a defendant may be eligible
for a mitigating role adjustment when he is sentenced only on the basis of his
own conduct and his participation is limited to transporting or storing drugs,
the adjustment is not required. See § 3B1.2, comment. (n.3(A)). In any event,
the record showed, inter alia, that Jerome both delivered and stored drugs.
      Finally, Jerome, in his third assignment of error, argues that he should
not have received a two-level enhancement of his offense level under U.S.S.G.
§ 2D1.1(b)(5) because he qualified for a mitigating role adjustment under
§ 3B1.2.   Because we discern no error in the district court’s denial of a



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                             No. 17-50191

mitigating role adjustment, Jerome was eligible for the § 2D1.1(b)(5)
enhancement.
     AFFIRMED.




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