     Case: 13-50692      Document: 00512620089         Page: 1    Date Filed: 05/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50692
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 6, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JUAN JOSE COSIO GOMEZ, also known as Juan Cosio,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CR-300-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Juan Jose Cosio Gomez pleaded guilty to conspiracy to possess with
intent to distribute one kilogram or more of heroin and possession with intent
to distribute one kilogram or more of heroin. He was sentenced to 100 months
of imprisonment. In his sole issue on appeal, Cosio Gomez argues that the
district court should have granted him a minor role reduction under U.S.S.G.
§ 3B1.2(b) because he was less culpable than the other participants in 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-50692    Document: 00512620089     Page: 2   Date Filed: 05/06/2014


                                 No. 13-50692

offense. He also argues that the district court’s denial of the reduction was
influenced by incorrect assertions that his conduct should be compared to that
of an “average” drug courier.
      To qualify for a minor role reduction, a defendant must be “substantially
less culpable than the average participant.” § 3B1.2, comment. (n.3(A)); United
States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005). We have held that
“[i]t 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.” Villanueva, 408 F.3d at 204 (internal
quotation marks and citation omitted).       Whether a defendant is a minor
participant is a factual determination reviewed for clear error. United States
v. Silva-De Hoyos, 702 F.3d 843, 846 (5th Cir. 2012). “A factual finding is not
clearly erroneous if it is plausible in light of the record read as a whole.” Id.
(internal quotation marks and citation omitted).
      Even if the Government’s arguments incorrectly compared Cosio
Gomez’s conduct to that of an “average” courier rather than to an “average
participant,” the district court’s statements do not suggest that it made the
same error. See § 3B1.2, comment. (nn.1 & 3(A)). While Cosio Gomez’s role
may have been somewhat less culpable than that of the other participants, his
role in transporting a large quantity of heroin from Texas to Ohio was neither
“substantially less culpable” nor “peripheral to the advancement of the illicit
activity.” § 3B1.2, comment. (n.3(A)); Villanueva, 408 F.3d at 204 (internal
quotation marks and citation omitted). Therefore, we conclude that the district
court did not clearly err in finding that Cosio Gomez should not receive a minor
participant reduction. See Silva-De Hoyos, 702 F.3d at 847.
      AFFIRMED.




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