     Case: 11-40644     Document: 00511872889         Page: 1     Date Filed: 05/31/2012




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

                                                                            FILED
                                                                           May 31, 2012
                                     No. 11-40644
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RODRIGO RAFAEL DAVILA, also known as Rigoberto Davila,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:09-CR-346-8


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Rodrigo Rafael Davila appeals the 135-month sentence imposed following
his guilty plea to possessing with the intent to distribute 89 kilograms of cocaine.
He argues that the district court erred in refusing to grant him a minor role
adjustment.
        Davila contends, for the first time on appeal, that the district court
erroneously denied his request for a minor role adjustment because the court
improperly found that he had participated in loading three shipments of cocaine,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40644    Document: 00511872889       Page: 2   Date Filed: 05/31/2012

                                   No. 11-40644

rather than two. He asserts that the court’s finding that he participated in the
third load was erroneous because it is irreconcilable with the district court’s
determination that he did not recruit the driver of the third load. He argues that
“[b]eing twice involved as only a loader puts [him] squarely on the periphery of
this organization.” But although Davila argued in the district court that he had
been wrongly identified as the person who had solicited the driver for the third
load, he failed to argue that he did not otherwise participate in that load. Thus,
we review his claim that the court erred by declining to grant a minor role
adjustment based on his participation in the third load for plain error. See
Puckett v. United States, 556 U.S. 129, 135 (2009).
      Whether Davila participated in the third load was a question of fact
capable of resolution by the district court; accordingly, the court’s factual finding
that he did participate in that load cannot constitute plain error. See United
States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001) (“Questions of fact capable of
resolution by the district court can never constitute plain error.”); see also United
States v. Fierro, 38 F.3d 761, 774 (5th Cir. 1994) (refusing to consider the
defendant’s fact based challenge to the district court’s denial of minor role
reduction).
      On appeal, Davila does not adequately advance any alternative argument
that his sentence was erroneous even if the district court properly determined
that he had participated in the third load. Accordingly, the judgment of the
district court is AFFIRMED.




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