     Case: 09-10712     Document: 00511047754          Page: 1    Date Filed: 03/10/2010




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

                                                  FILED
                                                                           March 10, 2010
                                     No. 09-10712
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HECTOR JAIME MENDEZ-PEREZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:08-CR-72-2


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Hector Jaime Mendez-Perez appeals the sentence imposed following his
guilty plea conviction for transporting illegal aliens and aiding and abetting in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18 U.S.C. § 2. He contends that the
district court clearly erred when it denied him a minor role reduction pursuant
to U.S.S.G. § 3B1.2(b).        Mendez-Perez argues that he was essentially just
another customer of co-defendant Ernesto Hernandez-Perez and that his sole
participation in the alien-trafficking offense was to temporarily drive the vehicle

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10712    Document: 00511047754 Page: 2        Date Filed: 03/10/2010
                                 No. 09-10712

in which the aliens were secreted in hopes of lowering his own smuggling fee.
According to Mendez-Perez, the district court clearly erred in finding that this
isolated act made him a full participant in the scheme.
      The district court must apply the Guidelines and calculate the advisory
range correctly. United States v. Williams, 520 F.3d 414, 422 (5th Cir.), cert.
denied, 129 S. Ct. 111 (2008). Whether the defendant is a minor participant is
a factual determination that is reviewed for clear error.        United States v.
Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). “A factual finding is not clearly
erroneous if it is plausible in light of the record read as a whole.” Id.
      Mendez-Perez has not shown that the district court clearly erred in
determining that he was not entitled to a minor role reduction pursuant to
§ 3B1.2(b). See id. Notwithstanding that his role in temporarily driving the
vehicle may have been only part of a larger alien smuggling scheme,
Mendez-Perez pleaded guilty to transporting illegal aliens for private financial
gain. As a driver, his role was central to the transportation of the illegal aliens
and clearly “coextensive with the conduct for which he was held accountable.”
United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001). Further, although
Mendez-Perez may have been less culpable than Hernandez-Perez, his activities
were not peripheral to the advancement of the illicit activity. See Villanueva,
408 F.3d at 203-04. Because Mendez-Perez was not substantially less culpable
than the average participant, the district court did not clearly err when it denied
him a two-level reduction pursuant to § 3B1.2(b). See id. Accordingly, the
district court’s judgment is AFFIRMED.




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