     Case: 11-40885     Document: 00511821238         Page: 1     Date Filed: 04/13/2012




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

                                                                            FILED
                                                                           April 13, 2012
                                     No. 11-40885
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DANIEL AGUSTIN ALFARO-MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-517-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Daniel Agustin Alfaro-Martinez (Alfaro) appeals the 46-month sentence
imposed following his guilty plea conviction of possession with intent to
distribute 100 kilograms or more of marijuana. He argues that the district court
clearly erred by denying him a two-level reduction pursuant to U.S.S.G. § 3B1.2
for his minor role in the offense because he served as a mere courier.
        Following United States v. Booker, 543 U.S. 220 (2005), this court
continues to review a district court’s application of the Sentencing Guidelines de

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40885

novo and its factual findings for clear error. United States v. Villanueva, 408
F.3d 193, 203 & n.9 (5th Cir. 2005). Whether Flores was a minor participant is
a factual determination that we review for clear error. See id. at 203.
      Alfaro asserts that the district court misapplied the Guidelines by
categorically excluding drug couriers, despite the fact that the commentary to
§ 3B1.2 permits a court to give the enhancement to a courier whose sentence was
based only on the drugs for which he was personally accountable. See § 3B1.2,
comment. (n.3(A)). A review of the record establishes that the district court did
not categorically exclude couriers from receiving the adjustment; instead, the
court found that the circumstances of Alfaro’s case did not warrant the
reduction.
      Alternatively, Alfaro maintains that he should have received the two-level
reduction because, as a mere courier, his role was not central to the narcotics
organization. Neither the Guideline nor the commentary mandates that a
courier receive the adjustment. Alfaro’s role in transporting over 500 kilograms
of marijuana was more than peripheral, as a courier is often “indispensable to
a drug-smuggling operation.” United States v. Buenrostro, 868 F.2d 135, 138 5th
Cir. 1989). Accordingly, his assertion that he was merely a courier does not
automatically entitle him to a minor role adjustment. See United States v.
Franklin, 561 F.3d 398, 407 (5th Cir. 2009). Additionally, for purposes of
§ 3B1.2, a defendant’s participation in the offense is not to be evaluated with
reference to the entire criminal enterprise of which the defendant was a part but
in relation to the conduct for which the defendant was held accountable. United
States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001). Alfaro’s sentence was
based entirely on the conduct that he was directly involved in and the quantity
of drugs he personally transported.     Although he was not precluded from
receiving a minor role adjustment under the Guidelines, such a reduction was
not required. See id.



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                                 No. 11-40885

      Accordingly, Alfaro did not establish that his role in the offense was
peripheral. The district court did not clearly err in refusing to award a minor
role adjustment. See United States v. Jenkins, 487 F.3d 279, 282 (5th Cir. 2007);
Garcia, 242 F.3d at 598-99. Consequently, the judgment of the district court is
AFFIRMED.




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