     Case: 12-40259       Document: 00512138351         Page: 1     Date Filed: 02/07/2013




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

                                                                            FILED
                                                                         February 7, 2013
                                     No. 12-40259
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE ANGEL SAAVEDRA-MORENO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:10-CR-1870-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Jose Angel Saavedra-Moreno (Saavedra) appeals his conviction and
sentence for possession of methamphetamine with intent to distribute. Finding
no reversible error, we affirm.
       Saavedra first challenges the district court’s imposition of a two-level
adjustment for his role pursuant to § 3B1.1(c) of the Sentencing Guidelines,
which also resulted in the denial of a safety valve adjustment. Saavedra
contends that the enhancement is inapplicable because the person he allegedly

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40259     Document: 00512138351      Page: 2    Date Filed: 02/07/2013

                                  No. 12-40259

directed was a confidential source (CS). Alternatively, he argues that the
district court erred by concluding that he was the person heard speaking in a
recorded telephone conversation with the CS.
      Although Saavedra objected to the enhancement on the second ground he
raises here, he did not do so on the first ground. Thus, we review that argument
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009); United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir.
1994). The Government concedes that the CS cannot be a participant for
purposes of a § 3B1.1 enhancement. Nevertheless, we conclude that any plain
error there may have been did not affect Saavedra’s substantial rights.
Saavedra did not dispute the presentence report’s factual determination that he
directed another coconspirator, who was unidentified, to deliver a drug-laden
van along with $1,200 to the CS. As those facts would support the enhancement,
Saavedra cannot show a reasonable probability that, but for the error, the
outcome would have been different. See United States v. Marquez, 685 F.3d 501,
510 (5th Cir. 2012).    We need not reach Saavedra’s alternative argument
regarding the district court’s findings with respect to the recorded telephone call.
Given the determination regarding Saavedra’s role, it follows that the court did
not reversibly err by denying him a safety valve reduction. See U.S.S.G.
§ 5C1.1(a)(4).
      Saavedra also contends that the factual basis is insufficient to support his
plea because it did not establish that he knew the drug type and quantity. As
Saavedra concedes, his argument is foreclosed by this court’s decision in United
States v. Betancourt, 586 F.3d 303, 307-09 (5th Cir. 2009). He raises it solely to
preserve it for further review.
      The judgment of the district court is AFFIRMED.




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