     Case: 10-40055     Document: 00511266980          Page: 1    Date Filed: 10/19/2010




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

                                                 FILED
                                                                          October 19, 2010
                                     No. 10-40055
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

JOB ORTUNO-GARCIA,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-765-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Job Ortuno-Garcia was convicted after pleading guilty to conspiracy to
transport an alien within the country, placing the life of another in jeopardy.
Ortuno-Garcia argued that he should receive a four-level reduction to his offense
level because he was a minimal participant in the conspiracy, serving merely as
a lookout on one occasion. The district court denied Ortuno-Garcia’s request for
a minimal role reduction but granted him a two-level reduction for his minor role
in the offense. Ortuno-Garcia argues that the district court clearly erred and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40055    Document: 00511266980 Page: 2         Date Filed: 10/19/2010
                                 No. 10-40055

that he was entitled to a minimal role reduction because he was plainly among
the least culpable involved in the conspiracy and had no knowledge of the scope
of the conspiracy or the actions of other participants therein. The district court’s
denial of a reduction for a mitigating role is a factual determination that is
reviewed for clear error. United States v. Villanueva, 408 F.3d 193, 203 (5th Cir.
2005).
      U.S.S.G. § 3B1.2 provides for a four-level reduction in a defendant’s offense
level if the defendant was a “minimal” participant in a concerted criminal
activity and a two-level reduction in his offense level if he was a “minor”
participant. U.S.S.G. § 3B1.2. A minimal participant adjustment is appropriate
for a defendant who is “plainly among the least culpable of those involved in the
conduct of a group,” and a minor participant adjustment is appropriate for a
defendant “who is less culpable than most other participants, but whose role
could not be described as minimal.”          U.S.S.G. § 3B1.2 cmt. nn.4-5.     The
Sentencing Commission intends for district courts to award the minimal
participant adjustment infrequently. Id. at n.4; Rosier v. United States Parole
Comm’n, 109 F.3d 212, 214 (5th Cir. 1997).
      Although Ortuno-Garcia acted as a lookout for the alien smuggling
operation, we cannot say that the district court clearly erred when it found that
his role was minor rather than minimal. See Villanueva, 408 F.3d at 203-04. It
is plausible in light of the record as a whole that Ortuno-Garcia’s actions as a
paid lookout were less culpable than most other participants in the conspiracy
but were not so peripheral to the advancement of the goals of the conspiracy to
qualify him for the minimal role adjustment. The judgment of the district court
is AFFIRMED.




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