     Case: 11-40965     Document: 00511821972         Page: 1     Date Filed: 04/16/2012




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

                                                                            FILED
                                                                           April 16, 2012
                                     No. 11-40965
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EVERS ALEJANDRO BENITEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-511-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Evers Alejandro Benitez appeals his sentence following his guilty plea
conviction for possessing, with the intent to distribute, approximately 125
kilograms of marijuana. Benitez argues that the district court misapplied the
Sentencing Guidelines by denying him a minor role adjustment because he
served as the driver of a single load of marijuana.
        The defendant has the burden of proving, by a preponderance of the
evidence, that his role was minor in the offense. United States v. Garcia, 242

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40965   Document: 00511821972     Page: 2   Date Filed: 04/16/2012

                                    No. 11-40965

F.3d 593, 598 (5th Cir. 2001). The district court’s denial of the adjustment based
on the particular facts of a case is reviewed for clear error. United States v.
Villanueva, 408 F.3d 193, 204 (5th Cir. 2005). Benitez has not shown, by a
preponderance of the evidence, that his role was peripheral to the advancement
of the illicit activity. See United States v. Miranda, 248 F.3d 434, 446-47 (5th
Cir. 2001). Accordingly, the district court did not clearly err by denying him the
minor role adjustment. See Villanueva, 408 F.3d at 204.
         Benitez also argues, for the first time on appeal, that the district court
denied him a minor role reduction because it believed that such a reduction was
categorically inappropriate for the driver of a load. “A party must raise a claim
of error with the district court in such a manner so that the district court may
correct itself and thus, obviate the need for our review.” United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (internal quotation
marks and citation omitted). Because Benitez failed to raise his “fixed policy”
argument in the district court, his argument is reviewed for plain error only. See
id.
         A defendant may show that a district court is guilty of “mechanical
sentencing” by showing that the court used terms indicating a predisposition,
such as “routinely” or “habitually.” See United States v. Clements, 634 F.2d 183,
187 (5th Cir. 1981). In the instant case, the district court’s remarks do not
indicate that it “always” denied a minor role reduction to drug couriers. Rather,
the court’s statement that “the driver here of the load here, it’s not a situation
for role adjustment” suggests that the court was considering the facts specifically
before it. Accordingly, no plain error is shown. See Puckett v. United States, 556
U.S. 129, 135 (2009).
         AFFIRMED.




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