     Case: 11-50186     Document: 00511777301         Page: 1     Date Filed: 03/05/2012




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

                                                                            FILED
                                                                           March 5, 2012
                                     No. 11-50186
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FRANCISCO JAVIER CASTANEDA-CASTILLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2466-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Francisco Javier Castaneda-Castillo appeals the
sentences imposed following his guilty plea convictions for bulk cash smuggling
and document fraud. He contends that he was a minor participant in the
criminal activity and that the district court clearly erred in refusing to grant a
two-level adjustment under U.S.S.G. § 3B1.2(b).
        The burden is on the defendant to establish by a preponderance of the
evidence that he is entitled to a mitigating role adjustment under § 3B1.2.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50186    Document: 00511777301       Page: 2   Date Filed: 03/05/2012

                                   No. 11-50186

United States v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998). “[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)
(quoting § 3B1.2, comment. (n.3(A))). “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.”
Id. at 204 (internal quotation marks and citation omitted). The district court’s
denial of an adjustment under § 3B1.2(b) is a factual determination that is
reviewed for clear error. Id. at 203. “A factual finding is not clearly erroneous
if it is plausible in light of the record read as a whole.” Id.
      The fact that Castaneda-Castillo served only as a courier does not itself
entitle him to an adjustment under § 3B1.2(b) as a minor participant. See
United States v. Franklin, 561 F.3d 398, 407 (5th Cir. 2009). Castaneda-Castillo
was aware that his role in the cash smuggling activity was to elude authorities
and transport the illicit cash from the United States into Mexico. Given that the
operation relied on him to overcome security at the border checkpoint, it was
plausible for the district court to find that his role was not merely peripheral to
the advancement of the smuggling activity. See United States v. McElwee, 646
F.3d 328, 346 (5th Cir. 2011); Franklin, 561 F.3d at 407. Thus, the district court
did not clearly err in refusing to grant an adjustment under § 3B1.2(b).
      AFFIRMED.




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