     Case: 09-51098     Document: 00511190355          Page: 1    Date Filed: 07/30/2010




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

                                                 FILED
                                                                            July 30, 2010
                                     No. 09-51098
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PRESTON SAVELL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:09-CR-179-3


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Preston Savell pleaded guilty without the benefit of a plea agreement to
aiding and abetting attempted bank robbery (Count One); conspiracy to commit
bank robbery (Count Two); and aiding and abetting the use of a firearm during
a crime of violence (Count Three). The district court sentenced Savell to 71
months on Count One, 60 months on Count Two, to run concurrent, and 20 years
on Count Three, to run consecutively to Counts One and Two.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51098    Document: 00511190355 Page: 2         Date Filed: 07/30/2010
                                 No. 09-51098

      Savell first contends that the district court clearly erred in denying his
request for a minor role adjustment pursuant to U.S.S.G. § 3B1.2(b). A district
court may decrease a defendant’s offense level by two levels if it finds that the
defendant was a minor participant in the offense.         § 3B1.2(b).   A § 3B1.2
reduction applies only when a defendant is substantially less culpable than the
average participant. United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir.
2005). “It is not enough that a defendant does less than other participants; in
order to qualify as a minor participant, a defendant must have been peripheral
to the advancement of the illicit activity.” Id. at 204 (internal quotation marks
and citation omitted).    “A defendant has the burden of showing that he is
entitled to the downward adjustment.” United States v. Garcia, 242 F.3d 593,
597 (5th Cir. 2001). Whether the defendant is a minor participant is a factual
determination that we review for clear error. Villanueva, 408 F.3d at 203.
      By Savell’s own admissions, he entered into the conspiracy with his
codefendants knowing that the object of the conspiracy was to commit bank
robbery. As reflected by the presentence report, which the district court was free
to accept as reliable evidence, see United States v. Vital, 68 F.3d 114, 120 (5th
Cir. 1995), Savell furthered the object of that conspiracy by arming himself and
firing at one of the guards during the course of the attempted robbery. Savell’s
participation was not peripheral, but was essential, to the advancement of the
illicit activity, see Villanueva, 408 F.3d at 204, and was clearly “coextensive with
the conduct for which he was held accountable.” See Garcia, 242 F.3d at 598-99.
The district court did not clearly err in denying the role adjustment under
§ 3B1.2. See Villanueva, 408 F.3d at 203 & n.9.
      Also without merit is Savell’s challenge to the 20-year sentence as to
Count Three, which was the result of an upward variance from the Guidelines.
See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). Following




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   Case: 09-51098    Document: 00511190355 Page: 3        Date Filed: 07/30/2010
                                 No. 09-51098

United States v. Booker, 543 U.S. 220 (2005), our review of sentences is for
reasonableness in light of the sentencing factors set forth in 18 U.S.C. § 3553(a).
See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). We first
determine whether the district court committed procedural error. See Gall v.
United States, 552 U.S. 38, 51 (2007). If there is no procedural error, we then
“consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id.
      Savell’s assertion that the district court committed procedural error by
failing to consider all of the § 3553 factors and by focusing on the seriousness of
his offense as justification for the variance is belied by the record. While the
district court emphasized the seriousness of the offense and the injuries to
guard, the court stated multiple times that it had considered all of the § 3553(a)
factors. See United States v. Smith, 440 F.3d 704, 707. Likewise without merit
is Savell’s argument that the district court could not rely on factors already
encompassed within the guidelines to support a non-guidelines sentence.
See Brantley, 537 F.3d at 350. The district court committed no procedural error.
      Nor was Savell’s 20-year sentence substantively unreasonable. The 20-
year sentence reflected the seriousness of Savell’s offense, the need to promote
respect for the law, the need to provide just punishment, and the need to protect
the public from future crimes. The sentence imposed “was reasonable under the
totality of the relevant statutory factors.” Brantley, 537 F.3d at 349 (quotation
marks omitted); see also United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th
Cir. 2008).
      AFFIRMED.




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