     Case: 18-40391      Document: 00515022613         Page: 1    Date Filed: 07/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                      No. 18-40391                        FILED
                                                                       July 5, 2019

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
               Plaintiff - Appellee

v.

GUSTAVO GARCIA-MIRANDA,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CR-178-1


Before OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This appeal solely concerns the sentencing of a conspirator in a drug
transaction.     He argues he should not have been subject to a sentence
enhancement for the importation of methamphetamines and was entitled to a
sentence reduction for having only a minor role in the conspiracy. We find no
clear error in the district court’s findings and AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40391
               FACTUAL AND PROCEDURAL BACKGROUND
      In May 2016, the Department of Homeland Security received
information regarding a multi-syndicated drug trafficking and money
laundering organization that was operating in the Dallas and Fort Worth area.
Homeland      Security’s   subsequent   investigation      determined    that   the
organization was importing and distributing drugs from Mexico and smuggling
the bulk cash proceeds back to Mexico.         A confidential informant called
members of the organization to negotiate the purchase of multiple kilograms
of methamphetamine on December 13, 2016. Juan Manuel Bustos-Chipres
contacted the informant later that day, stating that he was in the Dallas area
and available to meet. Bustos-Chipres agreed to meet at a Golden Corral
restaurant in Garland, Texas, where he provided to the confidential informant
a sample of the methamphetamine. Bustos-Chipres agreed to deliver five
kilograms of methamphetamine to the informant the following day.
      The next day, the informant called a member of the organization known
as Kike, who stated that he had completed the five-kilogram purchase of
methamphetamine from his associate, Don Tavo. Kike told the informant that
a “person of confidence” would make the delivery, who turned out to be Bustos-
Chipres.     Bustos-Chipres arrived at the restaurant that was the agreed
meeting location with the defendant Gustavo Garcia-Miranda as a passenger.
Garcia-Miranda and Bustos-Chipres entered the restaurant together. The
informant then called Bustos-Chipres, who exited the restaurant with Garcia-
Miranda and drove away. The vehicle was eventually stopped for a traffic
violation.
      Officers stated that Bustos-Chipres was extremely nervous during the
traffic stop. They asked him if there was anything illegal in the vehicle. He
repeatedly said “no.” He then granted oral permission to search the vehicle.
Officers saw a speaker box in the trunk that was unusually heavy, with
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                                  No. 18-40391
materials inside inconsistent with a speaker. Bustos-Chipres then exited the
vehicle and appeared as though he might flee. Officers attempted to detain
him, and he resisted. Garcia-Miranda, on the other hand, ran to the vehicle
and was observed reaching inside. Officers ordered him to remove his hand
from the vehicle and to lie down. He complied. In the speaker box were 5.93
kilograms of “Ice,” or d-methamphetamine, which a lab tested at 99% purity.
Garcia-Miranda stipulated that the amount involved during the term of the
conspiracy involved “500 grams or more of a mixture or substance containing
a detectable amount of methamphetamine.”
      Garcia-Miranda pled guilty to one count of conspiracy to possess with
intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841, 846.
The presentence report (“PSR”) determined that Garcia-Miranda’s base offense
level was 38 pursuant to U.S.S.G. § 2D1.1(c)(1) because the offense involved
more than 4.5 kilograms of Ice. The PSR applied a two-level enhancement
pursuant to Guidelines Section 2D1.1(b)(5) because the offense involved the
importation of methamphetamine from Mexico, and Garcia-Miranda was not
entitled to a mitigating-role adjustment under Section 3B1.2. After a two-level
adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a), Garcia-
Miranda’s total offense level of 38 and his criminal history category of I yielded
an advisory guidelines range of 235 to 293 months of imprisonment.
      Garcia-Miranda objected to the PSR on two grounds: the Section
2D1.1(b)(5) importation enhancement was improper because he was not aware
that the methamphetamine originated in Mexico; further, he was entitled to
a mitigating role adjustment in part because he was simply Bustos-Chipres’s
“helper” who rode as a friend. Garcia-Miranda urged both objections at his
sentencing.
      At the sentencing hearing, Garcia-Miranda attempted to distinguish
existing caselaw concerning whether knowledge of the drug’s origin was
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required for an importation enhancement. See United States v. Serfass, 684
F.3d 548, 551 (5th Cir. 2012). Garcia-Miranda also called Bustos-Chipres as a
witness, who testified that Garcia-Miranda was not “involved in [the]
arrangement of getting the methamphetamines,” had no “input on putting the
drugs in the car,” and was “merely riding along with [Bustos-Chipres] as some
sort of . . . protection.” Bustos-Chipres concluded that Garcia-Miranda “was
less involved” in the offense than he.
      On cross-examination, Bustos-Chipres testified that he did not know
who hired him to distribute the nearly six kilograms of methamphetamine. He
refused to disclose who gave him the phone number used to contact the
informant in the drug distribution. Upon being instructed by the district court
to answer the question, Bustos-Chipres refused. The district court noted that
Bustos-Chipres could not “pick and choose what he’s going to answer.” The
district court found Bustos-Chipres not to be credible and did not rely on his
testimony.   The court determined that it defied common sense to believe
Garcia-Miranda did not know that the methamphetamine was imported from
Mexico.
      The district court overruled Garcia-Miranda’s objections and adopted the
PSR. The court did not grant Garcia-Miranda’s request for a mitigating-role
reduction. It did, however, calculate Garcia-Miranda’s Guidelines range using
a two-level reduction through the “safety valve” provisions and a further one-
level reduction for acceptance of responsibility, resulting in a total offense level
of 35. The district court imposed a sentence of 168 months, at the bottom of
the 168 to 210-month Guidelines range.
      On appeal, Garcia-Miranda challenges the denial of his request for a
mitigating-role   adjustment     and     the   application   of   the   importation
enhancement.


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                                  No. 18-40391
                                 DISCUSSION
      This court reviews “the district court’s interpretation of the Sentencing
Guidelines de novo, and review[s] the district court’s factual findings for clear
error.” Serfass, 684 F.3d at 550. “There is no clear error if the district court’s
finding is plausible in light of the record as a whole.” Id. (quoting United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)). We first will review
whether the district court erred when it found that Garcia-Miranda was not a
minor or minimal participant, then consider the propriety of the two-level
importation enhancement.

I.    Mitigating Role Adjustment
      Garcia-Miranda argues the district court erred when it did not grant a
two-level sentence reduction for having a minor role. Garcia-Miranda claims
that the district court’s decision should be reviewed de novo, because the
district court “misinterpreted the guidelines . . . when it relied on factors that
were not relevant to Garcia-Miranda’s role in the conspiracy.”                “The
determination whether to apply [U.S.S.G. § 3B1.2] is based on the totality of
the circumstances and involves a determination that is heavily dependent
upon the facts of the particular case.” U.S.S.G. § 3B1.2 cmt. n.3(C). When a
defendant objected in district court, we review for clear error a district court’s
finding that a defendant was not a minor or minimal participant. United
States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016).
      Section 3B1.2 “provides a range of adjustments for a defendant who
plays a part in committing the offense that makes him substantially less
culpable than the average participant in the criminal activity.” § 3B1.2, cmt.
n.3(A). In particular, it authorizes a two-level reduction for a defendant who
was a “minor participant.” § 3B1.2(b). A minor participant is one who is “less
culpable than most other participants in the criminal activity, but whose role

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could not be described as minimal.” § 3B1.2, cmt. n.5. The defendant has the
burden of demonstrating his entitlement to a minor role adjustment. United
States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016). A Section 3B1.2 adjustment
is not warranted simply because a defendant “does less than other
participants.” United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001).
        Garcia-Miranda argues that the evidence demonstrates he was involved
in the conspiracy only for a short time, that he was less culpable than a drug
courier, that his only role was to ride along with Bustos-Chipres to appear to
be protection, that he did not know the amount of the narcotics in the vehicle,
nor did he know the terms of the sale. Garcia-Miranda also argues that the
district court relied on improper factors in denying his mitigating role. These
included that he and Bustos-Chipres were both illegal immigrants from
Mexico, that they knew each other from Mexico, that they were in the vehicle
together, and that he attempted to grab his cell phone from the car when
arrested.
        Garcia-Miranda also argues that he was less culpable than most other
participants, shown to some extent by the fact he received a reduction under
the “safety valve” pursuant to Section 5C1.2 of the Guidelines. Because he
described his small role in the offense, and the district court had to have
believed that he was truthful to receive the safety valve, he argues entitlement
to a reduction for being a minor participant.
        We will review the evidence to determine whether the district court’s
findings were plausible. Serfass, 684 F.3d at 550. Drug couriers are not
necessarily entitled to a mitigating role adjustment. See Castro, 843 F.3d at
612.      Furthermore, the defendant bears the burden of proving by a
preponderance of the evidence that a reduction was warranted. Id. At the
sentencing hearing, Garcia-Miranda called Bustos-Chipres to testify, who
claimed that Garcia-Miranda had “no input on placing the drugs in the car,”
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                                  No. 18-40391
that he was only there for protection, and that Garcia-Miranda did not arrange
for the drugs to be in the car.
      On    cross-examination,    Bustos-Chipres    refused    to   answer    the
government’s questions even after the district court instructed him to answer.
The district court found that Bustos-Chipres was not credible nor forthcoming.
The district court noted that Bustos-Chipres and Garcia-Miranda were both
from Mexico, that they had a previous relationship there, and that they were
illegally present in the United States. The district court determined that
Garcia-Miranda was minimizing his conduct and not telling “the whole story.”
The district court stated that Garcia-Miranda was “more involved” than he
admitted.    There is evidence that Garcia-Miranda accompanied Bustos-
Chipres inside the restaurant where the delivery of the methamphetamine was
to take place, that they left together after the confidential informant called
Bustos-Chipres, and that Garcia-Miranda attempted to recover a cell phone
from the stopped vehicle after Bustos-Chipres attempted to flee. The district
court also heard that Garcia-Miranda had joint possession of the
methamphetamine in the vehicle, and that he was present to provide at least
the illusion of protection for Bustos-Chipres. Furthermore, Garcia-Miranda
stipulated that he “knew that the amount involved during the term of the
conspiracy involved 500 grams or more of . . . methamphetamine.”
      Based on this evidence, the district court’s finding that Garcia-Miranda
was not entitled to a mitigating role adjustment was plausible. The evidence
allowed the district court to infer that Garcia-Miranda had greater knowledge
of the “scope and structure of the criminal activity” and to determine the
“nature and extent of the defendant’s participation in the commission of the
criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(C). The district court therefore
did not rely on irrelevant factors when it considered those “non-exhaustive . . .
factors” in the Guidelines commentary. Id.
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                                  No. 18-40391
      Furthermore, Garcia-Miranda’s evidence was insufficient to overcome
his burden of showing that he was substantially less culpable than the average
participant. Castro, 843 F.3d at 612. The district court explicitly found that
Bustos-Chipres, Garcia-Miranda’s only witness, was not credible. Because the
district court could plausibly have inferred that Garcia-Miranda was more
than a minor participant from the government’s evidence and the PSR, and
Garcia-Miranda failed to present credible evidence establishing the culpability
of an average participant and his substantially lower culpability, we find no
error in the district court’s factual finding. See id. at 613.
      We discuss one additional detail of this issue. The district court focused
on the prior relationship of these two men in Mexico to support that Garcia-
Miranda knew of the greater scheme. Garcia had the burden of producing
evidence of the nature of the role of an average participant, but the district
court completely discredited his evidence. We have indicated the importance
of a district court’s findings about average participation before assessing
whether someone was substantially less culpable than that, and no such
findings were made here. See United States v. Sanchez-Villareal, 857 F.3d 714,
722 (5th Cir. 2017). In that case, we reversed as the “wisest course” in the
absence of findings. Id. (quoting United States v. Cruickshank, 837 F.3d 1182,
1195 (11th Cir. 2016)). Yet here, because Garcia-Miranda had the burden to
show he was below average, and the district court found his one witness had
no credibility, there is no evidence to support the reduction. In light of the
failure of proof, and despite the absence of findings of what constituted the
average, we see no basis for reversal.
      Garcia-Miranda’s arguments include that the district court’s grant of a
safety valve constituted an effective finding that Garcia-Miranda was truthful
in his representations to the government. He represented to the government
that he was simply a passenger in the car with his co-defendant, and that he
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                                     No. 18-40391
knew there were drugs in the car but had no involvement in negotiating or
delivering the drugs. The grant of a safety valve, though, does not create an
entitlement to a mitigating role reduction. The safety valve requires only that
he not be “an organizer, leader, manager, or supervisor of others in the
offense.” See U.S.S.G. § 5C1.2(a)(4).
       The district court did not err in finding that Garcia-Miranda was not
eligible for the mitigating role reduction.

II.    Importation Enhancement
       Garcia-Miranda      also     disputes     the    two-level     enhancement       for
importation of methamphetamine. Section 2D1.1(b)(5) provides for a two-level
enhancement if the offense involved the importation of methamphetamine and
the defendant did not qualify for a mitigating role adjustment under U.S.S.G.
§ 3B1.2, which we addressed above. Garcia-Miranda argues there was no
evidence in the record he was involved in the actual importation of the
methamphetamine, and he could not have reasonably foreseen that the drugs
were imported from Mexico, citing the Guidelines provision concerning
“relevant conduct.” U.S.S.G. § 1B1.3(a)(1)(B)(iii).
       These arguments do not overcome that the Section 2D1.1(b)(5)
“sentencing enhancement applies if the offense involved the importation of
amphetamine or methamphetamine regardless of whether the defendant had
knowledge of that importation.”             Serfass, 684 F.3d at 552.            Further,
“distribution   (or    possession    with      intent   to   distribute)    of   imported
methamphetamine, even without more, may subject a defendant to the Section
2D1.1(b)(5) enhancement . . . . Because the methamphetamine [the defendant]
possessed was imported from Mexico, the enhancement was properly applied.”
United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014).



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                              No. 18-40391
     We conclude that regardless of what Garcia-Miranda knew, or what he
could have foreseen, the fact that the methamphetamine here was imported
means that we affirm the two-level importation enhancement.
     AFFIRMED.




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