     Case: 11-10859     Document: 00511900120         Page: 1     Date Filed: 06/26/2012




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

                                                                            FILED
                                                                           June 26, 2012
                                     No. 11-10859
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ARNULFO MENDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-65-3


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Arnulfo Mendez pleaded guilty to a one-count indictment charging him
and two codefendants, brothers Santiago and Lorenzo Valdez, with conspiracy
to possess with intent to distribute and to distribute 500 grams or more of
cocaine. See 21 U.S.C. §§ 841, 846. Mendez agreed to allow his codefendants to
store approximately eight kilograms of cocaine in his home in exchange for
approximately $1,600. While the cocaine was in his home, Mendez allowed
Lorenzo to drive his pickup truck. Lorenzo used the pickup truck during a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10859

delivery of cocaine to a purchaser. The cocaine remained in Mendez’s home for
one to two weeks before Mendez was arrested.
      The Valdez brothers were part of a larger conspiracy to smuggle drugs
from Mexico into the United States. Between 2009 and March 24, 2011, the
Valdez brothers possessed and distributed approximately 38.82 kilograms of
cocaine. The drug-smuggling operation had been ongoing for at least two years
prior to their arrest in this case. Mendez’s only involvement in the conspiracy
was the storage of drugs in his home.
      Mendez appeals his within-guidelines sentence of 120 months on the bases
(1) that the district court erred in denying him a mitigating role adjustment
under U.S.S.G. § 3B1.2, and (2) that his sentence is substantively unreasonable.
      “[Section] 3B1.2 only applies when a defendant is substantially less
culpable than the average participant.” United States v. Villanueva, 408 F.3d
193, 203-04 (5th Cir. 2005) (internal quotation marks and citation omitted). “A
minor participant adjustment is not appropriate simply because a defendant
does less than other participants; in order to qualify as a minor participant, a
defendant must have been peripheral to the advancement of the illicit activity.”
United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001). “Section 3B1.2
does not contemplate that the participation level is to be evaluated in reference
to the entire criminal enterprise of which the defendant is a part.” United States
v. Garcia, 242 F.3d 593, 598 (5th Cir. 2001). Instead, the court must determine
whether his involvement was “comparable to that of an ‘average participant.’”
Id. When a defendant is not held responsible for “the entire criminal history of
the drug organization,” but rather, only for the conduct (or drugs) in which he
was directly involved, “his role [is] not minor, but actually coextensive with the
conduct for which he was held accountable.” Id. at 598-99.
      Mendez was sentenced based on the eight kilograms of cocaine found in his
home rather than for the 38.82 kilograms of cocaine distributed by the Valdez
brothers between 2009 and March 24, 2011. Therefore, his role was “coextensive

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                                  No. 11-10859

with the conduct for which he was held accountable” and thus was not minor.
See id.
      Mendez points to an amendment to the commentary to § 3B1.2 that took
effect after his September 2011 sentencing. See U.S.S.G. App. C, Vol. III,
amendment 755. The referenced commentary relates to the fact-finding process
for a mitigating role adjustment. See § 3B1.2, comment. (n.3(C)). In part,
Amendment 755 deleted from Application Note 3(D) of § 3B1.2 the following
sentence: “As with any other factual issue, the court, in weighing the totality of
the circumstances, is not required to find, based solely on the defendant’s bare
assertion, that such a role adjustment is warranted.” The deletion of this
sentence does not further Mendez’s argument because the district court denied
a minor role reduction based upon other factors in addition to Mendez’s own
assertions, i.e., Mendez’s knowing participation in helping the Valdez brothers
carry out their drug distribution activities, the hole he dug or allowed someone
to dig in his bedroom floor for storage of the drugs; his allowing Lorenzo to use
his truck to conduct drug distribution activity, and the money he expected in
return for storing and protecting the drugs. Mendez’s sentence was based
entirely on the conduct in which he was directly involved and on the quantity of
drugs that he personally stored. See Garcia, 242 F.3d at 598-99. As the district
court’s finding that Mendez was not a minor participant is plausible in light of
the record as a whole, Mendez has not shown that the district court clearly erred
in refusing to award a minor role adjustment. See Villaneuva, 408 F.3d at 203.
      Mendez argues that his 120-month sentence is substantively unreasonable
because it did not account for the kinds of sentences available, the nature and
circumstances of the offense, or the history and characteristics of the defendant.
He notes that he has close ties to his family and that his brother is fighting
cancer. According to Mendez, he was struggling to pay bills, was behind on his
property taxes, and was about to be evicted from his home when he agreed to


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store drugs for the Valdez brothers in exchange for money. Mendez states that
he did not threaten or injure anyone during the offense and that he did not
organize the criminal enterprise. He was involved for two weeks of a two year
operation, he contends, and he had no role in the conspiracy other than to allow
the Valdez brothers to store drugs at his home. Finally, Mendez asserts that the
district court failed to adequately consider that the offense of conviction carried
a statutory sentence of 5 to 40 years.
      Mendez has not rebutted the presumption of reasonableness applicable to
his within-guidelines sentence; he has not shown that the sentence does not
account for a factor that should receive significant weight, gives significant
weight to an irrelevant or improper factor, or represents a clear error of
judgment in balancing sentencing factors. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Therefore, he has not shown that the district court
abused its discretion in imposing his within-guidelines sentence of 120 months.
Gall v. United States, 552 U.S. 38, 51 (2007)).
      AFFIRMED.




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