     Case: 17-30540       Document: 00514504441         Page: 1     Date Filed: 06/07/2018




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

                                     No. 17-30540
                                                                                   Fifth Circuit

                                                                                 FILED
                                   Summary Calendar                           June 7, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                  Plaintiff - Appellee

v.

RANDALL D. BEEBE, also known as Hog, also known as Hoggie,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:16-CR-125-4


Before BARKSDALE, OWEN, and WILLETT, Circuit Judges.
PER CURIAM: *
       Randall D. Beebe challenges the denial of a mitigating-role adjustment
under Sentencing Guideline 3B1.2 for his sentence, following his guilty plea,
of, inter alia, 135 months’ imprisonment for conspiracy to distribute and
possess, with intent to distribute, methamphetamine, and use of a
communication facility to facilitate drug trafficking, in violation of 21 U.S.C.
§§ 841(a)(1), 843(b), and 846.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-30540

      Beebe was a member of a drug-trafficking organization involving at least
13 other codefendants. FBI agents intercepted telephone calls between Beebe
and the leader of the organization in which they discussed the leader’s selling
methamphetamine to Beebe on credit. The district court based its’ denying
Beebe a mitigating-role adjustment on, inter alia: his direct interaction with
the leader of the conspiracy in purchasing methamphetamine, showing Beebe
had knowledge and an understanding of the structure of the conspiracy; the
average conspirators’ being street-level dealers, with Beebe’s functioning in
that capacity; and Beebe’s criminal record’s revealing he had prior convictions
for drug-related offenses and was not a “novice” in drug trafficking.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). 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).
      Pursuant to the above standard of review, whether a defendant was a
minor or minimal participant is a factual question and, therefore, reviewed
only for clear error. United States v. Gomez-Valle, 828 F.3d 324, 328 (5th Cir.
2016). Accordingly, the factual finding for Guideline 3B1.2 purposes “is not
clearly erroneous if it is plausible in light of the record as a whole”. United
States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016) (internal quotation omitted).




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                                  No. 17-30540

      A district court need not expressly weigh each Guideline factor in
deciding whether to grant a mitigating-role reduction. United States v. Torres-
Hernandez, 843 F.3d 203, 209 (5th Cir. 2016). The court should grant the
adjustment only when defendant’s condition is “substantially less culpable
than the average participant”. U.S.S.G. § 3B1.2 cmt. n.3(A) (emphasis added).
The court did not err in relying on the earlier-stated factors in refusing to grant
Beebe the adjustment under Guideline 3B1.2. United States v. Jimenez, 687
F. App’x 395, 398 (5th Cir. 2017); United States v. Ramirez-Esparza, 703 F.
App’x 276, 278, 279 n.3 (5th Cir. 2017).
      Moreover, Beebe has failed to satisfy his burden of establishing the
culpability of, and that he was substantially less culpable than, the average
participant. Castro, 843 F.3d at 613. The court’s finding Beebe was an average
participant in the conspiracy was plausible in the light of the record as a whole,
and, therefore, not clear error.       U.S.S.G. § 3B1.2 cmt. n.3(A); Torres-
Hernandez, 843 F.3d at 207.
      AFFIRMED.




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