     Case: 10-40191 Document: 00511340534 Page: 1 Date Filed: 01/05/2011




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

                                                 FILED
                                                                           January 5, 2011
                                     No. 10-40191
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE ROBERTO SALAZAR CUELLAR,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:09-CR-2142-2


Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Roberto Salazar Cuellar (Salazar) pleaded guilty to conspiring to
possess with intent to distribute in excess of one kilogram of heroin, possessing
with intent to distribute in excess of one kilogram of heroin, and importing into
the United States more than one kilogram of heroin. He appeals the 188-month
sentence imposed upon his conviction. He argues that the district court erred
in (1) determining the drug quantity attributable to him under the Guidelines,
(2) applying a two-level enhancement pursuant to U.S.S.G. § 3B1.1(c) on the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40191

basis that he occupied a leadership role, (3) applying a two-level enhancement
pursuant to U.S.S.G. § 3B1.4 for use of a minor in connection with the offense;
and (4) denying him safety-valve relief under U.S.S.G. § 5C1.2.
      Salazar has not shown that the district court clearly erred in holding him
accountable for more than 3 but less than 10 kilograms of heroin for purposes of
sentencing. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005);
U.S.S.G. § 2D1.1 (applying a base offense level of 34 to offenses involving at least
3 kilograms but less than 10 kilograms of heroin). Salazar conceded that the
instant offense involved 2.476 kilograms of heroin. The record supports that he
previously completed at least two smuggling trips for the same organization –
which was associated with other attempts to smuggle heroin – and was paid
identically for this trip and each of his prior trips. Thus, the district court could
have inferred that Salazar smuggled a similar amount of heroin on each trip.
See United States v. Medina, 161 F.3d 867, 877 (5th Cir. 1998). Because the
record supports that Salazar’s prior trips involved at least .524 kilograms of
heroin, the district court’s quantity finding was plausible in light of the record
as a whole. See Medina, 161 F.3d at 877.
      Salazar’s challenge to the two-level adjustment pursuant to § 3B1.1(c) also
lacks merit. A defendant qualifies for a § 3B1.1 adjustment if he was the
organizer, leader, manager, or supervisor of one or more other participants.
§ 3B1.1, comment. (n.2). While Salazar asserts that he and his wife participated
equally in the instant offense, the record supports that Salazar recruited his wife
to participate in the offense because he believed that her participation would
reduce the likelihood of detection. See § 3B1.1, comment. (n.4) (noting that two-
level adjustment is warranted if defendant, inter alia, recruits accomplices).
Moreover, the record indicates that Salazar directed his wife with respect to the
manner in which the offense should be completed, i.e., he instructed his wife
regarding the logistics of the offense and commanded her to perform particular
acts. See United States v. Turner, 319 F.3d 716, 725 (5th Cir. 2003). Thus,

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                                  No. 10-40191

Salazar has not shown that the district court clearly erred in applying an
enhancement under § 3B1.1(c). See United States v. Rose, 449 F.3d 627, 633 (5th
Cir. 2006).
      Salazar’s contention that he should not have been assessed an adjustment
under § 3B1.4 is likewise unavailing. Section 3B1.4 provides that a defendant
who “used or attempted to use a person less than eighteen years of age to commit
the offense or assist in avoiding detection of, or apprehension for, the offense” is
subject to a two-level sentence enhancement. § 3B1.4. While Salazar argues
that his child merely was present during the smuggling attempt, Salazar hid the
heroin within a child car seat on which his son was seated during the attempt.
The district court plausibly could have inferred that the child was included to
reduce suspicion and to facilitate passage across the border without agents
detecting the presence of heroin. See United States v. Mata, — F.3d —, No. 09-
41092, 2010 WL 4009880, at *3 (5th Cir. Oct. 14, 2010). Because the record does
not contain the basis for the sentencing judge’s decision to deny Salazar’s wife
a similar § 3B1.4 adjustment, we are unable to determine whether any disparity
in the application of the adjustment was unwarranted.
      Finally, Salazar’s contention that the district court erred when it denied
him a safety valve reduction is without merit. Salazar argues that the district
court’s determination that he was not eligible for a safety valve reduction was
based on its erroneous conclusion that he was an organizer or leader. Because
the district court did not clearly err in determining that Salazar was an
organizer or leader pursuant to § 3B1.1(c), he was ineligible for a safety valve
reduction. See U.S.S.G. § 5C1.2(a)(4). Therefore, Salazar has not shown clear
error. See United States v. Miller, 179 F.3d 961, 963-64 (5th Cir. 1999).
      Accordingly, the district court’s judgment is AFFIRMED




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