     Case: 15-40367       Document: 00513397532         Page: 1     Date Filed: 02/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                     No. 15-40367                                    FILED
                                   Summary Calendar                           February 26, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

PRUDENCIO S. VILLALOBOS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:14-CR-297


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Prudencio S. Villalobos pleaded guilty in 2014 to conspiracy to launder
monetary instruments, in violation of 18 U.S.C. § 1956. He challenges his 36-
month, below-advisory-Guidelines sentence, claiming the court erred both in
determining the amount of laundered funds attributable to him, and in
denying him a minor-role adjustment under Guideline § 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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 15-40367

      Although post-Booker, the Sentencing 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 Guidelines sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (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); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). As long as a factual
finding is plausible in the light of the record as a whole, it is not clearly
erroneous and should be upheld. United States v. Alaniz, 726 F.3d 586, 618–
19 (5th Cir. 2013).
      The Pre-Sentence Investigation Report (PSR) and testimony at
sentencing by the Government established Villalobos was involved in the
money-laundering conspiracy, and included evidence he transferred and
deposited funds into “funnel accounts” at banks in several States between 2010
and 2014. His “[m]ere objections” to facts in the PSR will not “suffice as
competent rebuttal evidence” to the information presented by the Government.
Id. at 619. Moreover, given the evidence of Villalobos’ continued involvement,
and his failure to present evidence to the contrary, his contention he withdrew
from the conspiracy in July 2010 is unavailing. See United States v. Torres,
114 F.3d 520, 525 (5th Cir. 1997). Because the court’s determination that
Villalobos was involved in the conspiracy from 2010 to 2014 is plausible in the
light of the record as a whole, it did not clearly err in attributing slightly over
$1 million in laundered funds to him. See Alaniz, 726 F.3d at 619.
      For Villalobos’ assertion that the court erred by refusing to reduce his
offense level, based on his claimed minor role in the conspiracy, whether a



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                                  No. 15-40367

defendant is a minor participant is a factual finding; therefore, it is reviewed
only for clear error. See id. at 618–19; United States v. Silva-De Hoyos, 702
F.3d 843, 846 (5th Cir. 2012). It goes without saying that the determination of
a role adjustment under § 3B1.2 is based “on the totality of the circumstances”
and is “heavily dependent upon the facts of the particular case”. U.S.S.G.
§ 3B1.2, cmt. n.3(C).
      Villalobos’ participation was essential to the advancement of the money-
laundering conspiracy, especially in the light of his recruitment and
supervision of another individual to help accelerate the deposit process. See
United States v. Villanueva, 408 F.3d 193, 203–04 (5th Cir. 2005). Accordingly,
given the totality of the circumstances, the court did not clearly err in
concluding   Villalobos’   activities   were   not     simply    peripheral    to   the
advancement of the conspiracy. See id.; U.S.S.G. § 3B1.2, cmt. n.3(C).
      AFFIRMED.




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