     Case: 19-40177      Document: 00515174879         Page: 1    Date Filed: 10/25/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-40177
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 25, 2019
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JUAN FLORENCIO SALAS-LERMA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:18-CR-1706-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Juan Florencio Salas-Lerma appeals the sentence imposed following his
guilty-plea conviction for transporting an undocumented alien within the
United States for private financial gain. He argues that the district court erred
by denying a mitigating role adjustment under U.S.S.G. § 3B1.2 because he
merely drove a truck in exchange for a reduced fee to the smuggler.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40177     Document: 00515174879      Page: 2   Date Filed: 10/25/2019


                                  No. 19-40177

      Section 3B1.2 of the Sentencing Guidelines provides for various
adjustments for a defendant “who plays a part . . . that makes him
substantially less culpable than the average participant in the criminal
activity.”   § 3B1.2, comment. (n.3(A)).     The defendant has the burden of
demonstrating he should receive an adjustment. United States v. Castro, 843
F.3d 608, 612 (5th Cir. 2016). This is a factual question we review for clear
error. United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016). If the
district court’s findings are plausible in light of the record as a whole, there is
no clear error. United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012).
      First, Salas-Lerma failed to establish the role of an “average participant”
in the instant offense. See Castro, 843 F.3d at 613. Although he compares
himself to a man believed to be the leader of an alien smuggling organization,
Salas-Lerma failed to provide any other information about this man or his role
in the offense. Salas-Lerma also claimed to have received instructions from
another man who was a passenger in the truck, but he also failed to provide
any other information about this passenger or his role in the offense. Finally,
Salas-Lerma has not shown that the leader of the smuggling organization
constitutes an “average participant.” See id. at 612.
      In addition, the district court did not clearly err in finding that Salas-
Lerma failed to show he was substantially less culpable than an “average
participant.” Unlike the other smuggled aliens, Salas-Lerma already was
living in the United States, and he was seen with the reported leader of the
smuggling organization helping to prepare the truck used in the offense. Other
aliens gave statements indicating that Salas-Lerma instructed them where to
hide in the truck, that Salas-Lerma received a phone call advising him that the
truck was being followed, and that Salas-Lerma told the others to flee when he
stopped the truck.     These facts, which Salas-Lerma did not specifically



                                        2
    Case: 19-40177    Document: 00515174879    Page: 3   Date Filed: 10/25/2019


                                No. 19-40177

challenge or refute at sentencing, indicate that he had knowledge of the “scope
and structure of the criminal activity,” that he participated in “planning or
organizing the criminal activity,” that the “nature and extent” of his
participation was important to the criminal activity, and that he had at least
some decision-making authority. § 3B1.2, comment. (n.3(C)).
      AFFIRMED.




                                      3
