     Case: 17-41019      Document: 00514566465         Page: 1    Date Filed: 07/23/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 17-41019                          FILED
                                  Summary Calendar                    July 23, 2018
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE FERNANDEZ-GUZMAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CR-130-3


Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Fernandez-Guzman was convicted of a single count of conspiracy to
possess with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 846 and 21 U.S.C. § 841(b)(1)(A), and was sentenced to 168 months in prison.
Fernandez-Guzman appeals his sentence.
       On appeal, Fernandez-Guzman contends that the district court erred by
not granting a minor-role adjustment under U.S.S.G. § 3B1.2. He asserts that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41019

he merely helped others in delivering methamphetamine on one instance and
did not negotiate or arrange the delivery. We review findings of fact, including
whether a § 3B1.2 adjustment is warranted, for clear error. See United States
v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole. Id. A defendant
must establish by a preponderance of the evidence his entitlement to a § 3B1.2
adjustment. See United States v. Castro, 843 F.3d 608, 612-13 (5th Cir. 2016);
United States v. Torres-Hernandez, 843 F.3d 203, 209-10 (5th Cir. 2016).
      The district court’s denial of a § 3B1.2 adjustment was plausible in light
of the whole record. See Villanueva, 408 F.3d at 203. Fernandez-Guzman had
no automatic right to an adjustment merely because he was not a mastermind
of the crime, see United States Gomez-Valle, 828 F.3d 324, 331 (5th Cir. 2016),
and his role as a courier is not determinative, see Castro, 843 F.3d at 612-13;
Torres-Hernandez, 843 F.3d at 210. He had to show by a preponderance of the
evidence the culpability of the average participant in the criminal activity and
that he was substantially less culpable than that participant. See Castro, 843
F.3d at 613; § 3B1.2 comment. (n.3(A). Fernandez-Guzman did not show the
level of culpability of the average participant in the offense, establish his own
relative level of culpability, or otherwise demonstrate that he did so much less
than other participants that he was peripheral to the advancement of the illicit
activity. See Castro, 843 F.3d at 613; United States v. Martinez-Larraga, 517
F.3d 258, 272 (5th Cir. 2008). Accordingly, the district court did not clearly err
in denying the adjustment. See Villanueva, 408 F.3d at 203; Castro, 843 F.3d
at 613.
      Fernandez-Guzman also argues that the district court erred in assessing
a two-level adjustment pursuant to U.S.S.G. § 2D1.1(b)(5) on the basis that the
offense involved the importation of methamphetamine. He asserts that he had



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                                  No. 17-41019

no knowledge of any importation and, moreover, there was no direct evidence
that the methamphetamine involved in the offense was imported. We review
for clear error the district court’s factual finding that the offense involved the
importation of methamphetamine. See United States v. Serfass, 684 F.3d 548,
550 (5th Cir. 2012).
      We have held that an adjustment under § 2D1.1(b)(5) applies regardless
of whether the defendant had knowledge of the importation. Id. at 552; United
States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014). Thus, Fernandez-Guzman’s
claim that the adjustment was wrongly applied because he did not know that
the methamphetamine came from Mexico is foreclosed. See Serfass, 684 F.3d
at 550; Foulks, 747 F.3d at 915. We must follow our prior precedent absent an
intervening Supreme Court or en banc decision or a change in statutory law.
United States v. Treft, 447 F.3d 421, 425 (5th Cir. 2006).
      The record otherwise reflects that application of the adjustment was not
clear error. See Serfass, 684 F.3d at 550. The district court plausibly could
have inferred based on the facts in the presentence report, which Fernandez-
Guzman failed to rebut or show to be unreliable, that the methamphetamine
in this case was imported from Mexico. See id.; Foulks, 747 F.3d at 915; United
States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007).
      AFFIRMED.




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