     Case: 16-41224      Document: 00514064284         Page: 1    Date Filed: 07/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                      No. 16-41224
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             July 7, 2017

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

JOSE GUADALUPE LUNA–SALINAS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-173-1


Before KING, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Guadalupe Luna–Salinas appeals the sentence imposed after he
pleaded guilty to possession with intent to distribute more than 50 grams of
methamphetamine. He contends that he should be resentenced because (1) the
district court failed to expressly rule on his request for a mitigating role
adjustment under U.S.S.G. § 3B1.2; or (2) assuming the district court implicitly
denied this request, it erred in so doing. We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41224    Document: 00514064284    Page: 2   Date Filed: 07/07/2017



                                No. 16-41224
                     I. FACTS AND PROCEEDINGS
      Luna–Salinas was arrested on February 14, 2016 at the Los Indios Port
of Entry in Brownsville, Texas. Border officers noticed Luna–Salinas was
behaving nervously and giving them inconsistent answers, so they referred
him for further inspection. While patting Luna–Salinas down, border officers
discovered two packages containing 908.8 total grams of a white powdery
substance taped to his lower back, which field-tested positive for
methamphetamine. Luna–Salinas admitted that he was going to be paid $500
to smuggle the packages across the border. He further stated that three men
had taped the packages to his body, forced him to carry them across the border,
and instructed that the packages be delivered to a specific address. He claimed
that these men, who allegedly carried briefcases and high caliber weapons, had
threatened to take Luna–Salinas’s family (who resided in Mexico) if he did not
comply.   Luna–Salinas ultimately pleaded guilty, without a written plea
agreement, to possession with intent to distribute more than 50 grams of
methamphetamine, and the district court accepted this plea.
      The probation office prepared a presentence report (PSR) that, in
relevant part, denied Luna–Salinas a mitigating role adjustment under
§ 3B1.2 of the Guidelines. The PSR determined that § 3B1.2 did not apply to
Luna–Salinas because he “occupied neither an aggravating nor mitigating role
in the offense.”     Luna–Salinas’s “participation consisted of importing
methamphetamine into the United States,” with plans “to transport it to a
predetermined location.”    But there was “no information to suggest he
recruited or directed the actions of others and did not appear to have any
authority over the drug smuggling operation.” After other adjustments, the
PSR calculated a total offense level of 33. Combined with a criminal history
category of I, this yielded a Guidelines range of 135 to 168 months.


                                       2
    Case: 16-41224    Document: 00514064284     Page: 3   Date Filed: 07/07/2017



                                 No. 16-41224
      Luna–Salinas filed written objections to the PSR, objecting, in relevant
part, to its denial of a mitigating role adjustment. Luna–Salinas argued that
he was entitled to a mitigating role adjustment because he was a “mere
courier.”   As support for his argument, Luna asserted that he “had no
understanding of the scope and structure of the criminal activity in which he
participated,” did not participate in the planning or organization of the
criminal activity, did not hold a position of high responsibility within the
criminal organization, and did not have any discretion regarding his criminal
acts. “In the alternative” to granting a mitigating role adjustment, Luna–
Salinas asked the district court “to consider a variance because [Luna–Salinas]
did not know he was importing methamphetamine and because he was a mere
courier.”
      In an addendum to the PSR, the probation office refuted this objection.
The addendum noted that, although Luna–Salinas had claimed he was forced
to carry the packages containing the methamphetamine, there was “currently
no corroborating information to substantiate his claim.”           Further, his
“participation was essential and instrumental in the commission of the instant
offense” because, “[w]ithout a willing participant to smuggle the narcotics into
the United States, the narcotics would not reach the illicit market.” According
to the addendum, it is not enough that a defendant do less than other
participants in the criminal activity.     Rather, to determine whether the
mitigating role adjustment applies, the court must also measure the
defendant’s “individual acts and relative culpability against the elements of
the offense.”
      At the sentencing hearing on August 24, 2016, the district court
“adopt[ed] the PSR subject[] to its ruling.” Luna–Salinas did not object to this
adoption, nor did he request further explanation or factual findings by the
district court. Luna–Salinas also did not raise his objection to the PSR’s denial
                                       3
     Case: 16-41224      Document: 00514064284        Page: 4     Date Filed: 07/07/2017



                                     No. 16-41224
of a mitigating role adjustment at the sentencing hearing. Instead, his counsel
focused on Luna–Salinas’s request “[i]n the alternative” for a variance.
Defense counsel enumerated the facts that warranted the variance, including
Luna–Salinas’s youth, education, and family circumstance. He stated that
Luna–Salinas was a “mere courier” who “had no understanding of the scope or
structure of the criminal activity in the organization which he participated in.”
In addition, he asserted Luna–Salinas did not participate in planning the
criminal activity, hold a position of high responsibility, or have any discretion
in his actions. The district court granted the variance “based upon the nature
and circumstance of the offense and the history and characteristics of [Luna–
Salinas].” The court stated that, in granting the variance, it had “taken into
consideration the entirety of the case, all the documentation, the statements of
counsel and [Luna–Salinas].”          It sentenced Luna–Salinas to 60 months’
imprisonment (48 months below the low end of the Guidelines range 1), followed
by five years of supervised release. Luna–Salinas timely appeals his sentence.
                   II. MITIGATING ROLE ADJUSTMENT
      Luna–Salinas first challenges the procedural reasonableness of his
sentence, alleging that the district court erred in failing to rule on his request
for a mitigating role adjustment and thus provided an inadequate factual basis
for denying this adjustment. However, Luna–Salinas did not argue at the
sentencing hearing that the district court gave an inadequate explanation for
its denial. Nor did he request additional factual findings or object to the
district court’s adoption of the PSR. “He could have asked the district court for
further explanation during the sentencing hearing, but did not.” United States
v. Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Accordingly, Luna–


      1   A new Guidelines range of 108 to 135 months was calculated at the sentencing
hearing, after the district court granted Luna–Salinas a two level reduction in his offense
level after finding him eligible for safety valve relief.
                                            4
    Case: 16-41224     Document: 00514064284     Page: 5   Date Filed: 07/07/2017



                                  No. 16-41224
Salinas’s argument challenging the procedural reasonableness of his sentence
is reviewed for plain error. Id.; United States v. Fernandez, 770 F.3d 340, 345
(5th Cir. 2014).
      To show plain error, an appellant must demonstrate a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009).       If the appellant makes such a
showing, we exercise the discretion to correct the error only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Here, however, Luna–Salinas fails to show any error by the district court. The
district court was permitted to implicitly make factual findings and rule on
Luna–Salinas’s objections through its adoption of the PSR; it need not do so
explicitly. See United States v. King, 773 F.3d 48, 52 (5th Cir. 2014); United
States v. Rodriguez–Rodriguez, 388 F.3d 466, 468 n.8 (5th Cir. 2004) (per
curiam). Accordingly, the district court did not err in doing so here, let alone
plainly err.
      Relying on United States v. Melton, 930 F.2d 1096 (5th Cir. 1991), Luna–
Salinas nevertheless argues that remand for additional factual findings is
necessary. In Melton, the defendant similarly argued that he was entitled to
a mitigating role adjustment. Id. at 1099. We vacated and remanded the
defendant’s sentence after concluding that the record was inadequate to review
this argument because the district court failed to articulate the factual basis
upon which it denied a mitigating role adjustment. Id. However, we also noted
that the defendant in Melton, unlike Luna–Salinas, requested at the
sentencing hearing that the district court provide such a factual basis for
denying the mitigating role adjustment, but the district court declined to do so.
Id. In contrast, Luna–Salinas did not make any such request, nor did he object
when the district court adopted the PSR. We have previously declined to apply
the result in Melton when the defendant fails to object to adoption of the PSR.
                                        5
    Case: 16-41224    Document: 00514064284     Page: 6   Date Filed: 07/07/2017



                                 No. 16-41224
See United States v. Harris, 24 F.3d 240, at *3 (5th Cir. 1994) (per curiam)
(unpublished); United States v. De Leon, 996 F.2d 307, at *1 (5th Cir. 1993)
(per curiam) (unpublished). Accordingly, Melton does not warrant remand in
this case.
      Luna–Salinas next challenges the substance of his sentence, arguing
that he was entitled to a mitigating role adjustment. Whether a defendant is
entitled to a mitigating role adjustment is a factual finding, and we review
preserved challenges to factual findings for clear error.     United States v.
Torres–Hernandez, 843 F.3d 203, 207 (5th Cir. 2016); United States v. Gomez–
Alvarez, 781 F.3d 787, 791 (5th Cir. 2015). “There is no clear error if the
sentencing court’s finding is plausible in light of the record as a whole.”
Gomez–Alvarez, 781 F.3d at 791 (quoting United States v. Cisneros–Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008)). The defendant bears the burden of proving
“by a preponderance of the evidence” at the sentencing hearing that he is
entitled to an adjustment to his base offense level. Torres–Hernandez, 843 F.3d
at 207 (quoting United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001)).
      Here, the parties disagree over the applicable standard of review. The
Government urges that Luna–Salinas waived his right to review of his
sentence (absent manifest injustice) because (1) he requested a downward
variance at the sentencing hearing and failed to mention his alternative
argument, the mitigating role adjustment; or (2) he invited the district court’s
error. In the alternative, the Government urges that plain error review applies
because Luna–Salinas failed to raise the mitigating role adjustment objection
at the sentencing hearing and did not object to the district court’s failure to
explicitly rule on it. Luna–Salinas argues that he preserved his mitigating role
adjustment objection, and thus it should be reviewed for clear error. Because
Luna–Salinas cannot show clear error, we need not decide whether he waived
his right to review or invited the errors of which he complains.
                                       6
      Case: 16-41224   Document: 00514064284     Page: 7   Date Filed: 07/07/2017



                                  No. 16-41224
       Section 3B1.2 of the Guidelines “provides a range of adjustments for a
defendant who plays a part in committing the offense that make him
substantially less culpable than the average participant in the criminal
activity.” U.S.S.G. § 3B1.2 cmt. n.3(A). A defendant’s base offense level may
be reduced by two levels “[i]f the defendant was a minor participant in any
criminal activity,” four levels “[i]f the defendant was a minimal participant in
any criminal activity,” or three levels if the defendant’s role falls somewhere in
between. U.S.S.G. § 3B1.2. Whether to apply a mitigating role adjustment
“involves a determination that is heavily dependent upon the facts of the
particular case.” U.S.S.G. § 3B1.2 cmt. n.3(C). Simply because a defendant
performs an essential or indispensable role is not dispositive of the defendant’s
eligibility for a mitigating role adjustment. Id. The commentary to § 3B1.2
provides a “non-exhaustive list of factors” that courts “should consider” in
determining the applicability of a mitigating role adjustment:
       (i) the degree to which the defendant understood the scope and
       structure of the criminal activity;
       (ii) the degree to which the defendant participated in planning or
       organizing the criminal activity;
       (iii) the degree to which the defendant exercised decision-making
       authority or influenced the exercise of decision-making authority;
       (iv) the nature and extent of the defendant's participation in the
       commission of the criminal activity, including the acts the
       defendant performed and the responsibility and discretion the
       defendant had in performing those acts;
       (v) the degree to which the defendant stood to benefit from the
       criminal activity
Id.    We have recently emphasized that these factors “are nonexclusive,
and . . . are only factors”; how they are weighed “remains within the sentencing
court’s discretion.” Torres–Hernandez, 843 F.3d at 209–10.
       Luna–Salinas argues that the district court erred in failing to address
these factors and notes that the PSR was also devoid of any mention of them.
But we have held that a district court does not err in failing to expressly weigh
                                        7
    Case: 16-41224    Document: 00514064284     Page: 8   Date Filed: 07/07/2017



                                 No. 16-41224
each factor in the commentary, and simply because the PSR did not do so is
not dispositive of whether the court considered the factors. Id. at 209. Luna–
Salinas next faults the PSR for mentioning his critical role in the criminal
enterprise, arguing that this analysis contravenes the commentary’s
instructions that such a role is not dispositive. However, it is not error to
consider a defendant’s critical role, provided this is not the sole factor
considered in the mitigating adjustment analysis. Compare United States v.
Sanchez–Villarreal, 857 F.3d 714, 721 (5th Cir. 2017) (concluding that the
district court erred by giving “conclusive weight” to its finding that the
defendant’s role was critical), with United States v. Castro, 843 F.3d 608, 612
(5th Cir. 2016) (“[A] court does not err by taking into account a defendant’s
integral role in an offense in deciding whether she is entitled to a [mitigating
role] adjustment, as long as her role is not the sole or determinative factor in
its decision.”).   Here, the PSR also considered Luna–Salinas’s relative
culpability and the lack of any mitigating factors in determining that a
mitigating role adjustment was not warranted.
      Finally, we conclude that the district court’s implicit finding that Luna–
Salinas was not entitled to a mitigating role adjustment was plausible in light
of the record as a whole. The PSR, which contained findings the district court
adopted in whole, subject to its rulings, stated that, in addition to having a
critical role, Luna-Salinas had average culpability relative to other
participants because his participation in the offense “consisted of importing
methamphetamine into the United States” with the intent “to transport it to a
predetermined location,” for which he would be paid $500. We cannot say that
the PSR’s finding that such conduct was indicative of average culpability was
in error.
      This conclusion is bolstered by the fact that Luna–Salinas offered scant
evidence (either in his written objections to the PSR or at sentencing) in favor
                                       8
    Case: 16-41224    Document: 00514064284     Page: 9   Date Filed: 07/07/2017



                                 No. 16-41224
of the adjustment and thus failed to meet his burden to show that he was
entitled to the adjustment.     The PSR noted that, although Luna-Salinas
claimed that individuals threatened to take his family if he did not transport
the narcotics, there was “no corroborating information to substantiate his
claim.” Both in his written objections and at the sentencing hearing, Luna-
Salinas offered only bare assertions regarding his lack of culpability due to his
mere courier status, with no no further explanation or corroborating evidence.
But these bare assertions are not enough, because a courier role does not
necessarily entail substantially less culpability. Castro, 843 F.3d at 612. Nor
does § 3B1.2 “provide an affirmative right to a [mitigating role] adjustment to
every actor but the criminal mastermind.”        Id. (quoting United States v.
Gomez–Valle, 828 F.3d 324, 331 (5th Cir. 2016)). Accordingly, the district
court’s conclusion that Luna-Salinas failed to meet his burden of showing he
was entitled to a mitigating role adjustment is plausible in light of the record
as a whole.
                             III. CONCLUSION
      We AFFIRM the district court’s judgment.




                                       9
