     Case: 15-50533           Document: 00513343189     Page: 1   Date Filed: 01/14/2016




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                      No. 15-50533                                  FILED
                                    Summary Calendar                         January 14, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES MALADY,

                                                 Defendant-Appellant


                       Appeal from the United States District Court
                            for the Western District of Texas
                                USDC No. 6:14-CR-189-21


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
         James Malady appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute less than 50 grams
of   a       mixture     or    substance   containing     a   detectable     amount             of
methamphetamine. He argues that the district court clearly erred in refusing
to grant a two-level reduction in his sentence pursuant to U.S.S.G. § 3B1.2
because of his allegedly minor role in the offense.


         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: 15-50533    Document: 00513343189     Page: 2   Date Filed: 01/14/2016


                                 No. 15-50533

      In order to be eligible for a § 3B1.2 sentencing reduction, a defendant
must show that he was “substantially less culpable than the average
participant” in the subject offense. See United States v. Villanueva, 408 F.3d
193, 203-04 (5th Cir. 2005). In this case, the district court denied a § 3B1.2
reduction to Malady based on its finding that Malady was an “average
participant” in a drug trafficking operation. The district court’s finding was
not clearly erroneous. The record established that, during the course of certain
wiretap intercepts, Malady was identified discussing the buying and selling of
methamphetamine from other participants in the operation in order to supply
his customers.   Malady met with methamphetamine suppliers on several
occasions to obtain methamphetamine. Malady also admitted that he used a
supplier’s vehicle to transport and deliver methamphetamine.
      Malady avers that the district court denied him a § 3B1.2 reduction
because his sentence was based on the criminal activity in which he was
actually involved. Malady claims this was error. While a § 3B1.2 reduction
“remains available for a defendant . . . who was only held accountable for the
conduct in which he was personally involved,” it is not available to an average
participant. Villanueva, 408 F.3d at 203-04. In this case, the district court
denied Malady a § 3B1.2 reduction on the grounds that Malady was an
“average participant” and not because he was being held accountable for the
illegal conduct in which he was personally involved. Because the district
court’s finding that Malady was an average participant is not clearly
erroneous, the district court did not commit error in denying Malady a § 3B1.2
reduction. See id. at 203.
      AFFIRMED.




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