     Case: 16-41575      Document: 00514179119         Page: 1    Date Filed: 10/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-41575                                  FILED
                                  Summary Calendar                          October 2, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS BARBOSA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-363-9


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Carlos Barbosa pleaded guilty to a single count of conspiracy to transport
aliens within the United States. He was sentenced to 12 months and one day
of imprisonment.
       In his only issue on appeal, Barbosa argues that he should have received
a mitigating role reduction under U.S.S.G. § 3B1.2. Because he did not raise


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41575      Document: 00514179119     Page: 2    Date Filed: 10/02/2017


                                  No. 16-41575

this issue or object on this basis in the district court, review is limited to plain
error.    The determination whether a defendant was a minimal or minor
participant is a factual issue. United States v. Gomez-Valle, 828 F.3d 324, 327
(5th Cir. 2016). Barbosa fails to show that the court plainly erred in failing to
award a reduction under § 3B1.2.
         We take this opportunity also to address the Government’s position on
the fourth prong of plain error review. Relying on United States v. Segura, 747
F.3d 323, 331 (5th Cir. 2014), the Government argues that we should not
exercise our discretion to remedy any plain error unless the error “shock[s] the
conscience of the common man, serve[s] as a powerful indictment against our
system of justice, or seriously call[s] into question the competence or integrity
of the district judge.” But this standard originated from the dissenting opinion
in United States v. Escalante–Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc),
and was specifically proposed as an alternative to the “far more permissive”
standard our court typically applies. Id. at 431, 435 (Smith, J., dissenting).
Because our rule of orderliness precludes a panel from overruling an earlier
opinion of our en banc court absent an intervening change in statutory law or
Supreme Court precedent, the proposed shock-the-conscience standard is
inapplicable.
         The judgment of the district court is AFFIRMED.




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