     Case: 15-41198    Document: 00514222668     Page: 1      Date Filed: 11/02/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                No. 15-41198                                 FILED
                              Summary Calendar                       November 2, 2017
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                             Clerk


             Plaintiff–Appellee,

v.

ARMANDO AMIEVA–RODRIGUEZ,

             Defendant–Appellant.



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before JONES, OWEN, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Armando Amieva–Rodriguez pled guilty to possession with the intent to
distribute more than 50 kilograms of marijuana. The district court declined to
apply a mitigating-role reduction and sentenced him to 30 months of
imprisonment and three years of supervised release.             Amieva–Rodriguez
appeals. Because the district court properly applied the sentencing guidelines
and did not clearly err in its factual findings, we affirm.
                                        I
      Armando Amieva–Rodriguez was born in Mexico in 1991, and he does
not have legal status in the United States. He paid $800 for assistance in
attempting to cross the United States–Mexico border illegally.                When he
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                                 No. 15-41198
reached the Mexican banks of the Rio Grande River on March 31, 2015 in his
attempt to enter this country, he agreed to smuggle marijuana across the
border for $200. Amieva–Rodriguez and 10 to 12 others built a makeshift raft
from a ladder and marijuana bundles and used the raft to cross the Rio Grande
and enter the United States. Once across, Amieva–Rodriguez spotted several
officers from the United States Bureau of Customs and Border Protection
(CBP) and ran into a field of sugar cane to hide. The CBP officers found him
beneath the brush and apprehended him. Officers located 101.4 kilograms of
marijuana nearby.
      One month later, Amieva–Rodriguez pled guilty to possession with
intent to distribute more than 50 kilograms of marijuana in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2. The district court
accepted his plea, and the case proceeded to sentencing. The Probation Office
prepared a Presentence Investigation Report (PSR) and, based on the 2014
edition of the Sentencing Guidelines Manual, calculated Amieva–Rodriguez’s
total offense level to be 21. That offense level yielded a Guidelines sentencing
range of 37 to 46 months of imprisonment. The Probation Office did not
recommend applying a mitigating-role reduction to the offense level, because
it concluded that Amieva–Rodriguez was an “active, knowing, and willing”
participant whose role as a drug courier was “instrumental” to the offense.
      Amieva–Rodriguez objected in writing to the Probation Office’s
conclusion.   He asked the district court to consider “proposed guideline
changes” that he said “urg[ed] a finding of minor participant for mere carriers
of drugs.” At the sentencing hearing, Amieva–Rodriguez again objected to the
Probation Office’s finding. He argued that his main objective was to cross the
border and that his guides forced him to transport the marijuana.           The
Government contended that Amieva–Rodriguez knowingly agreed to smuggle
the marijuana and expected payment for his efforts, and it emphasized the
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                                       No. 15-41198
case’s trans-national nature. The district court adopted the Probation Office’s
factual findings as to the mitigating-role reduction, found that Amieva–
Rodriguez was a more-than-minor participant and not entitled to a
mitigating-role reduction, and imposed a sentence of 30 months of
imprisonment and a three-year term of supervised release. Amieva–Rodriguez
appealed.
                                              II
       This appeal was held administratively by our court pending the issuance
of the mandate in United States v. Sanchez-Villarreal. 1 The mandate in that
case issued June 14, 2017.           Amieva–Rodriguez was released from federal
prison on June 28, 2017, after serving his term of imprisonment.                           We
accordingly address whether his appeal is moot.
       A person sentenced to supervised release faces “an ongoing consequence
that is a sufficient legal interest to support [jurisdiction]” if the district court
can modify or terminate the supervised release obligations. 2 This circuit has
not resolved whether a district court can modify a mandatory supervised
release term, 3 but there was no mandatory sentence in his case. The district
court found that Amieva–Rodriguez met the safety valve criteria under
18 U S C. § 3553(f) and U.S.S.G. § 5C1.2, and concluded that none of Amieva–
Rodriguez’s convictions carried a mandatory sentence.                   Because Amieva–
Rodriguez’s sentence was non-mandatory it is not “immune to modification,” 4
and if this court were to conclude that the district erred in failing to apply a




       1 857 F.3d 714 (5th Cir. 2017).
       2 United States v. Lares–Meraz, 452 F.3d 352, 355 (5th Cir. 2006) (per curiam).
       3 See United States v. Coleman, 681 F. App’x 413, 415-416 (5th Cir.) (per curiam), cert.

denied, 2017 WL 2620066 (2017).
       4 Lares–Meraz, 452 F.3d at 355; see also Johnson v. Pettiford, 442 F.3d 917, 918 (5th

Cir. 2006) (per curiam) (“[T]he possibility that the district court may alter Johnson’s period
of supervised release . . . prevents Johnson’s petition from being moot.”).
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minor-participant adjustment, and we were to remand, the district court could
conceivably conclude that a shorter prison term was appropriate and adjust
the term of supervised release since Amieva–Rodriguez had served a longer
sentence. Since it might be possible for Amieva–Rodriguez to obtain relief, his
appeal is not moot.
                                           III
      Central to Amieva–Rodriguez’s appeal is Amendment 794 to § 3B1.2 of
the Sentencing Guidelines. In general, Section 3B1.2 authorizes district courts
to reduce a defendant’s offense level based on his or her role in the crime. 5 The
district court can reduce a defendant’s offense level by two if the defendant
“was a minor participant,” by four if the defendant was a “minimal
participant,” and by three if the defendant’s participation fell between minor
and minimal. 6 Only those defendants who were “substantially less culpable
than the average participant in the criminal activity” may qualify for a
mitigating-role reduction. 7 Amieva–Rodriguez asserts that he was a minor
participant and therefore entitled to a two-level reduction. The commentary
to § 3B1.2 explains that a minor participant is a person who is “less culpable
than most other participants in the criminal activity, but whose role could not
be described as minimal.” 8
      Several    months      before    Amieva–Rodriguez         was     sentenced,   the
Sentencing Commission published proposed Amendment 794 to § 3B1.2. 9 The
effective date of this amendment was November 1, 2015, a few months after
the district court sentenced Amieva–Rodriguez. 10 But this court recently held



      5 U.S.S.G. § 3B1.2.
      6 Id.
      7 U.S.S.G. § 3B1.2 cmt. n.3(A).
      8 U.S.S.G. § 3B1.2 cmt. n.5.
      9 See United States v. Gomez–Valle, 828 F.3d 324, 328 (5th Cir. 2016).
      10 See U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015).

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that Amendment 794 was a clarifying amendment. 11 A clarifying amendment
does not change the meaning of a Guideline; it merely provides guidance
regarding an existing Guideline. 12 Clarifying amendments therefore have
retroactive effect. 13 We may consider on appeal whether and how the district
court applied Amendment 794. 14
      Amendment 794 expands § 3B1.2’s commentary but left its text
unchanged. 15 The amendment resolved a split among the Circuit courts as to
the meaning of “average participant.” 16 The amendment clarifies that “the
defendant is to be compared with the other participants ‘in the criminal
activity’” at issue in the defendant’s case. 17 Second, it explains that a person
who is paid to perform certain tasks but does not have a proprietary interest
in the criminal activity should still be considered for a § 3B1.2 role reduction. 18
Third, the commentary expressly provides that a defendant who is essential or
indispensable to the criminal activity may still receive a § 3B1.2 reduction “if
he or she is substantially less culpable than the average participant in the
criminal activity”; a defendant’s essential or indispensable nature is not
dispositive. 19   Finally, the revised commentary directs district courts to
consider the following non-exhaustive list of factors when considering a
mitigating-role reduction:
      (i)    the degree to which the defendant understood the scope and
             structure of the criminal activity;
      (ii)   the degree to which the defendant participated in planning
             or organizing the criminal activity;

      11 See United States v. Sanchez Villarreal, 857 F.3d 714, 721 (5th Cir. 2017).
      12 See id. at 719-21.
      13 See id.
      14 See id. at 719.
      15 See U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015).
      16 See id.
      17 See id.; see also United States v. Gomez–Valle, 828 F.3d 324, 329 (5th Cir. 2016).
      18 See U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015).
      19 Id.

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         (iii)   the degree to which the defendant exercised decision-making
                 authority or influenced the exercise of decision-making
                 authority;
         (iv)    the nature and extent of the defendant’s participation in the
                 commission of the criminal activity, including the acts the
                 defendant performed and the responsibility and discretion
                 the defendant had in performing those acts;
         (v)     the degree to which the defendant stood to benefit from the
                 criminal activity. 20


         The Commission explained that it promulgated the amendment to
increase how often, and to improve how consistently, district courts apply the
mitigating-role reduction. 21 However, the amendment did not create bright-
line rules as to whether drug couriers such as Amieva–Rodriguez qualify for
the reduction. 22 Courts may still take into account a defendant’s indispensable
role, so long as it is “not the sole or determinative factor in [the court’s]
decision” to deny a mitigating-role reduction. 23
                                             IV
         Amieva–Rodriguez contends that the district court did not consider or
apply Amendment 794. We review this issue de novo because it concerns how
the district court interpreted or applied the Guidelines. 24 Amieva–Rodriguez
argues that even if the district court did apply Amendment 794, it clearly erred
when it concluded that his participation in the smuggling scheme was
more-than-minor. This determination is a factual finding that we review for




         20 Id.
         21 See id.
         22 See id.; see also United States v. Torres–Hernandez, 843 F.3d 203, 206 (5th Cir.

2016).
         United States v. Castro, 843 F.3d 608, 612-13 (5th Cir. 2016).
         23

         See Torres–Hernandez, 843 F.3d at 207; see also United States v. Lige, 635 F.3d 668,
         24

670 (5th Cir. 2011).
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                                      No. 15-41198
clear error. 25 Because the Guidelines give the district court discretion in this
context, its factual finding is not clearly erroneous so long as it is “plausible in
light of the record as a whole.” 26
                                            A
       The record leads to the conclusion that the district court considered
Amendment 794.          The district court adopted the parts of Presentence
Investigation Report relevant to this appeal. That report reflects that Amieva–
Rodriguez was a “knowing” and “willing” participant, and the facts recited in
the report suggest that he “understood the scope and structure of the criminal
activity.” 27   The PSR’s recounting of how Amieva–Rodriguez joined the
criminal activity reflects the extent to which he “participated in planning or
organizing the criminal activity.” 28        The PSR found no evidence that he
exercised managerial authority. 29           The PSR documented details about
Amieva–Rodriguez’s role—how much marijuana he smuggled, how he crossed
the border, how much discretion he had, all of which pertain to the “nature and
extent of [his] participation in . . . the criminal activity . . . .” 30 It is undisputed
that Amieva–Rodriguez was to have earned $200 for participating in the
enterprise, which is relevant to the “degree to which the defendant stood to
benefit from the criminal activity.” 31         By adopting the PSR’s findings the
district court incorporated the underlying facts into its ultimate finding
regarding Amieva–Rodriguez’s role.



       25 See Torres–Hernandez, 843 F.3d at 207; see also United States v. Gomez–Valle, 828
F.3d 324, 327 (5th Cir. 2016).
       26 Torres–Hernandez, 843 F.3d at 207 (quoting United States v. Miranda, 248 F.3d

434, 446 (5th Cir. 2001)).
       27 U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015) (factor one).
       28 U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015) (factor two).
       29 U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015) (factor three).
       30 U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015) (factor four).
       31 U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015) (factor five).

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      Other record documents establish that the district court considered the
Amendment 794 factors. First, Amieva–Rodriguez’s written objection to the
PSR on the grounds that “proposed guideline changes are now urging a finding
of minor participant for mere carriers of drugs” was clearly in the record before
the district court. We can presume that the district court considered Amieva–
Rodriguez’s written objections to the PSR and his reference to proposed
guideline changes, which was Amendment 794. Second, at the sentencing
hearing both parties’ arguments implicated the Amendment 794 factors.
Amieva–Rodriguez’s counsel objected to the PSR’s finding against a
mitigating-role reduction and made arguments as to Amieva–Rodriguez’s role
in the criminal activity.          The Government discussed Amieva–Rodriguez’s
knowledge about the scope of the crime and the nature of his participation.
The district court explicitly referenced the trans-national nature of Amieva–
Rodriguez’s role when it overruled his objection.            Although neither party
mentioned the Amendment 794 factors by name, the narratives they presented
raised facts tracking those factors. The district court considered the substance
of Amendment 794.
                                                B
      The district court properly concluded that Amieva–Rodriguez was not a
minor participant. The district court’s finding is plausible and not clearly
erroneous in light of both the record and Amendment 794. The facts of this
case are analogous to those in United States v. Torres-Hernandez, in which we
held that the district court did not err in refusing to grant a minor-role
reduction to a defendant who, with others, transported marijuana on his back
within the United States for compensation. 32




      32   843 F.3d 203, 204 (5th Cir. 2016).
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       It was Amieva–Rodriguez’s burden to prove, by a preponderance of the
evidence, that his conduct warranted the reduction. 33 Yet only one factor—the
lack of evidence that Amieva–Rodriguez exercised managerial authority—
clearly weighs in his favor. By contrast, three factors weigh against a minor
role adjustment. First, Amieva–Rodriguez’s co-defendant said that they both
“knowingly and willingly agreed to smuggle the marijuana for payment,”
suggesting that Amieva–Rodriguez understood the criminal nature of his
activity and that he was participating in drug smuggling. 34 Next, “the nature
and extent of the defendant’s participation in . . . the criminal activity” 35
weighs against Amieva–Rodriguez’s position. His participation—smuggling
marijuana across the international border while himself illegally entering the
United States—was significant to the criminal activity, and he had some
discretion in how to perform this task. The district court’s determination that
the    nature    and     extent    of    Amieva–Rodriguez’s         participation     was
more-than-minor is plausible. Because Amieva–Rodriguez expected to earn
$200 for participating, it is also plausible that “the defendant stood to benefit
from the criminal activity.” 36 Neither Amieva–Rodriguez nor the Government
provided evidence about the degree to which Amieva–Rodriguez planned or
organized the activity, so that factor is neutral.
       Amieva–Rodriguez did not offer evidence of the culpability of
participants in the drug smuggling operation other than those who, like him,
agreed to transport the marijuana and fashioned a means of breaching the
United States border. There is no evidence that Amieva–Rodriguez was less
culpable than the others who participated with him in transporting marijuana


       33 See Torres–Hernandez, 943 F.3d at 207 (quoting United States v. Miranda, 248 F.3d
434, 446 (5th Cir. 2001)).
       34 U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015).
       35 Id.
       36 Id.

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across the Rio Grande River. Similar facts were present in United States v.
Torres-Hernandez, in which we observed that “[t]he only evidence in the record
regarding the participation of others in the possession of the 95 kilograms of
marijuana for distribution pertains to the other individuals who had
transported the drugs on their respective backs.” 37 We concluded in that case
that the defendant “was no more or less culpable than the other transporters.
He did not offer any evidence as to the participation, or expected participation,
of others involved in the growing, further transportation, or intended sale of
this marijuana.” 38 The district court’s failure to agree with Amieva–Rodriguez
that he was “substantially less culpable than the average participant in the
criminal activity” was not a clearly erroneous factual finding.
      Although the district court based its decision in part on Amieva–
Rodriguez’s “instrumental” role, Amendment 794 says that a defendant’s
indispensable role is not dispositive. 39 The Amendment does not “provide an
affirmative right to a [mitigating-role] reduction to every actor but the criminal
mastermind.” 40     A district court remains free to analyze a defendant’s
indispensable or essential role along with other considerations.
                                    *        *         *
      We AFFIRM the district court’s judgment.




      37 843 F.3d 203, 209 (5th Cir. 2016).
      38 Id.
      39 U.S.S.G. app. C sup., amend. 794 (Nov. 1, 2015).
      40 United States v. Gomez–Valle, 828 F.3d, 324, 331 (5th Cir. 2016).

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