     Case: 12-31163       Document: 00512360809         Page: 1     Date Filed: 09/03/2013




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

                                                                            FILED
                                                                        September 3, 2013
                                     No. 12-31163
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ERNESTO RAMON ALI VALLES, also known as Ernesto Ali Valles,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CR-90-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Ernesto Ramon Ali Valles pleaded guilty to conspiring to import heroin
and to possess heroin not listed in the manifest on a vessel arriving in the
United States; importation of heroin; and possession of heroin with intent to
distribute. The district court sentenced him to 87 months in prison, at the
bottom of the guidelines range. Valles appeals, contending that the district court
erred by refusing to reduce his offense level for being a minor participant
pursuant to U.S.S.G. § 3B1.2(b). Finding no error, we affirm.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-31163

      Whether Valles was entitled to a minor role adjustment is a factual finding
reviewed for clear error. See United States v. Villanueva, 408 F.3d 193, 203 (5th
Cir. 2005). A minor participant is one who is “less culpable than most other
participants, but whose role could not be described as minimal.” U.S.S.G.
§ 3B1.2, comment. (n.5). “It is not enough that 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.” Villanueva, 408 F.3d
at 204 (internal quotation marks and citation omitted).
      Valles argues that he was only a courier of the drugs, that he had no role
in organizing the operation, and that he did not negotiate payment. Further, he
contends, he had less contact with the drug dealers than his codefendant, Aura
Martinez, who received a minor role adjustment. He notes that a person named
“Jose” supplied Martinez with a cell phone; that Martinez would be responsible
for delivering the drugs to “Jose” in the event that an unidentified male who was
to take delivery of the heroin did not show up at the designated meeting place;
and that Martinez was “evidently living” with “Jose.”
      Although one’s role as a drug courier does not preclude a minor role
adjustment, a mere courier is “not necessarily a minor participant in the illicit
activity.” United States v. Thomas, 690 F.3d 358, 376 (5th Cir. 2012) (internal
quotation marks and citation omitted), cert. denied, 131 S. Ct. 1281 (2013). As
the district court noted, Valles transported more than three kilograms of heroin,
a significant amount, in his shorts from the vessel to a meeting with Martinez.
In addition, before the vessel arrived, Valles was in regular contact with both
Martinez and a person named “Julio” regarding setting up the meeting between
Martinez and Valles; Valles was to receive $8,000 of the $9,000 that “Jose”
provided to Martinez; and Valles was to accompany Martinez to deliver the
drugs to the unidentified male. Given the totality of the circumstances, it was
not clear error to conclude that Valles’s role was not “peripheral to the



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                               No. 12-31163

advancement of the illicit activity.” Villanueva, 408 F.3d at 204 (internal
quotation marks and citation omitted).
     AFFIRMED.
