     Case: 13-31074       Document: 00512829480         Page: 1     Date Filed: 11/07/2014




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

                                     No. 13-31074                                 FILED
                                   Summary Calendar                        November 7, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CHAVO T. THOMAS; MAURICE T. SMITH, also known as Maurice Smith,

                                                  Defendants - Appellants


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                               USDC No. 1:12-CR-88


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Chavo T. Thomas and Maurice T. Smith were found guilty of conspiring
to possess, with intent to distribute, 50 grams or more of methamphetamine
and 500 grams or more of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A) & 846.
The district court sentenced Thomas to 275 months’ imprisonment, with 24
months to run concurrent with any state sentence he was ordered to serve 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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 13-31074

the remaining 251 months to run consecutive to it. The district court sentenced
Smith to life in prison. Thomas challenges his within-Sentencing Guidelines
sentence; Smith, the admission of testimony of his prior “bad acts”.
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      In district court, Thomas objected to the finding that he was not a minor
participant and to the concomitant denial of a reduction under Guideline
§ 3B1.2 (decrease offense level for minimal or minor participation). When a
defendant objects to the denial of a Guideline § 3B1.2 role-in-the-offense
reduction, review is for clear error. E.g., United States v. Alaniz, 726 F.3d 586,
626 (5th Cir. 2013) (citation omitted); see also United States v. Villanueva, 408
F.3d 193, 203 (5th Cir. 2005) (citation omitted).
      Thomas insists he is not challenging the factual finding underlying the
determination that he was not a minor participant; nevertheless, he asserts he
was less culpable than the principals in the conspiracy, the average
participant, and his coconspirator Marvin Thompson. “The defendant bears
the burden of proving, by a preponderance of the evidence, [his] minor role in
the offense”. Alaniz, 726 F.3d at 626 (citation and internal quotation marks
omitted). Thomas merely asserted in district court he was a minor or minimal
participant. The entire conspiracy consisted of Thomas’ and others’ traveling
to California to purchase methamphetamine they would transport to Ferriday,



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Louisiana, to resell.      Thomas’ role was to transport half of that
methamphetamine. That role was critical to the success of the conspiracy and
was not “peripheral”. E.g., United States v. Martinez, 517 F.3d 258, 272 (5th
Cir. 2008).   Thus, the finding that Thomas was not a minor participant,
resulting in the refusal to apply a reduction for Thomas’ role in the offense, is
not clearly erroneous. See Alaniz, 726 F.3d at 626; Martinez, 517 F.3d at 272-
73 (citation omitted); U.S.S.G. § 3B1.2.
      Thomas claims the district court erred by denying the reduction based
solely on its finding he was a drug mule. Because he did not raise this issue in
district court, review is only for plain error. E.g., United States v. Claiborne,
676 F.3d 434, 438 (5th Cir. 2012). Thomas must show a forfeited plain (clear
or obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id.
      Even if Thomas had pointed to any authority stating that it is error for
a district court to deny a minor role reduction solely because the defendant is
a drug mule, the court did not deny the reduction for that reason. Thomas has
not shown the requisite clear or obvious error. See Puckett, 556 U.S. at 135.
      Thomas also claims, for the first time on appeal, that the court erred by
denying the reduction without assessing his relative culpability. To the extent
this is a legal question, Thomas has not shown clear or obvious error. He points
to no authority demonstrating that, upon a defendant’s bare assertion that he
is a minor or minimal participant, the district court must conduct its own
comparative analysis of the relative roles of the participants. Because the
defendant bears the burden of proving his minor role, Thomas must make that
comparison. Alaniz, 726 F.3d at 626. The district court considered the parties’



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arguments and the findings in the presentence investigation report, which it
adopted. By denying a reduction for Thomas’ role in the offense, the district
court found Thomas was not “substantially less culpable than the average
participant”. U.S.S.G. § 3B1.2.
      Smith contends the district court reversibly erred by allowing the
Government to elicit from its witnesses irrelevant and prejudicial extrinsic,
bad-acts, character evidence. For the following reasons, his claim fails.
      He has not briefed any argument challenging the admission of testimony
by one witness, Quinn. Smith also did not object, on this basis, to testimony
by another witness, his coconspirator Thompson, and he has inadequately
briefed his challenging the admission of that testimony.
      The few record citations he provides are not of Thompson’s testimony on
direct examination by the Government. Without citation of relevant legal
authority and without argument, Smith makes conclusional assertions that
Thompson’s testimony was “character” evidence.         He characterizes all of
Thompson’s testimony as “extrinsic” evidence without asserting why it should
not be considered intrinsic evidence, especially in the light of Thompson’s
participation in the conspiracy. Finally, although he cites United States v.
Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), Smith fails to provide any
analysis or application of the facts to its two-part test for assessing the
admissibility of evidence.
      AFFIRMED.




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