     Case: 16-30807      Document: 00514461146         Page: 1    Date Filed: 05/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-30807
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                           May 7, 2018
UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

RAYMOND PORTER, also known as T. Porter,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CR-271-8


Before ELROD, COSTA, and HO, Circuit Judges.
PER CURIAM:*
       Raymond Porter was convicted of conspiring to possess with intent to
distribute one kilogram or more of heroin and using a communications facility
in the commission of that offense, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 843(b), and 846, as well as 18 U.S.C. § 2. On a subsequent
resentencing following his initial appeal, Porter was sentenced to 151 months
of imprisonment. On appeal, Porter presents two grounds for reversal. He


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-30807
claims that the district court erred in denying a mitigating-role adjustment
under U.S. Sentencing Guidelines § 3B1.2. He also argues that the district
court erred in its factual determination that it was reasonably foreseeable that
the volume of heroin attributable to the underlying drug trafficking conspiracy
was between three and ten kilograms. We disagree with both claims.
      This Court has previously held that a defendant must be “peripheral” to
the advancement of a conspiracy in order to qualify for a mitigating-role
adjustment. See, e.g., United States v. Kuhrt, 788 F.3d 403, 424 (5th Cir. 2015)
(quoting United States v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005)). The
district court applied this rule and denied a mitigating-role adjustment to
Porter accordingly. Porter claims that this rule was abrogated by Amendment
794, which amended the commentary to § 3B1.2 in November 2015 to provide
that “a defendant perform[ing] an essential or indispensable role in the
criminal activity is not determinative,” and that a “defendant may receive an
adjustment . . . if he or she is substantially less culpable than the average
participant in the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3.
      But Porter’s argument is foreclosed by this Court’s prior ruling in United
States v. Castro, 843 F.3d 608 (5th Cir. 2016). In Castro, we maintained this
Court’s rule, notwithstanding Amendment 794, that “‘the defendant must do
enough less so that [s]he at best was peripheral to the advancement of the illicit
activity.’” 843 F.3d at 613-14 (citing United States v. Thomas, 932 F.2d 1085,
1092 (5th Cir. 1991)). Porter’s argument fails under Amendment 794 in any
event. He is not “substantially less culpable than the average participant in
the criminal activity”—to the contrary, the district court considered
substantial evidence that connected Porter to the conspiracy’s purchase and
transportation of heroin between New Orleans and Houston.
      In addition, Porter argues that the district court clearly erred in finding
that he was responsible for three to ten kilograms of heroin.            We are
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                                  No. 16-30807
unpersuaded.    The district court adopted the findings of the Presentence
Investigation Report (“PSR”) that the conspiracy involved between three and
ten kilograms of heroin, and that Porter was responsible for this same amount.
A “defendant has the burden of presenting rebuttal information to show that
the information set forth in the PSR is ‘materially untrue . . . .’” United States
v. Williams, 2017 WL 4947130, at *1 (5th Cir. Oct. 31, 2017) (quoting United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012)). Porter fails to meet this
evidentiary burden.
      Accordingly, the district court’s judgment is AFFIRMED.




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