     Case: 12-50234       Document: 00512085844         Page: 1     Date Filed: 12/17/2012




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

                                                                            FILED
                                                                        December 17, 2012
                                     No. 12-50234
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FABRIENNE ROSALINDA MORALES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2461-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Fabrienne Rosalinda Morales appeals the concurrent 24-month sentences
imposed on her guilty plea convictions for conspiring to import a controlled
substance, importing a controlled substance, conspiring to possess with intent
to distribute a controlled substance, and possessing with intent to distribute a
controlled substance. See 21 U.S.C. §§ 963, 960, 952, 846, 841. Morales
contends that she was entitled to a two-level reduction of her base offense level
under U.S.S.G. § 2D1.1(b)(15) because her participation in her offenses was

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50234       Document: 00512085844    Page: 2   Date Filed: 12/17/2012

                                  No. 12-50234

motivated by the intimate relationship she had with her life-long friend and co-
defendant, Herlinda Gamez-Amador (“Gamez”).
      We review sentencing decisions for abuse of discretion. United States v.
Rowan, 530 F.3d 379, 381 (5th Cir. 2008). This review process requires that we
first ensure that the district court did not commit a significant procedural error;
if no such error is found, we then review the sentence for substantive
reasonableness.    Id.    In the instant case, no contention is made that the
sentences are substantively unreasonable.
      We do not analyze Morales’s arguments concerning the proper
interpretation of § 2D1.1(b)(15) and the factual issue whether her relationship
with Gamez was intimate.           As the party seeking a reduction under
§ 2D1.1(b)(15), Morales had the burden of proving the facts supporting her
entitlement. See United States v. Flanagan, 80 F.3d 143, 146 (5th Cir. 1996).
Section 2D1.1(b)(15) provides that if the defendant receives the four-level
reduction under U.S.S.G. § 3B1.2(a) for being a minimal participant, as Morales
did, the offense level may be reduced two levels more if “all of the following
factors” exist: (1) she “was motivated by an intimate or familial relationship or
by threats or fear to commit the offense and was otherwise unlikely to commit
such an offense”; (2) she “received no monetary compensation from the illegal
purchase, sale, transport, or storage of controlled substances”; and (3) she “had
minimal knowledge of the scope and structure of the enterprise.” Thus, to
comport with § 2D1.1(b)(15), Morales had to present, inter alia, evidence
preponderating in favor of a finding that she received no monetary compensation
for participating in the offenses. See Flanagan, 80 F.3d at 146.
      Morales did not testify concerning whether she received monetary
compensation and did not present other evidence on this point. Although her
counsel argued that monetary compensation was never expected, we do not
accept counsel’s argument as evidence. See United States v. Alfaro, 919 F.2d
962, 966 (5th Cir. 1990). Moreover, the fact that compensation was unexpected

                                        2
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                                 No. 12-50234

does not mean that it was never received. Morales’s assertion that the record is
devoid of evidence that she was compensated is unavailing, as the Government
did not have the burden of proof on the issue. See Flanagan, 80 F.3d at 146.
      AFFIRMED.




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