     Case: 19-20031      Document: 00515229336         Page: 1    Date Filed: 12/09/2019




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

                                                                          FILED
                                    No. 19-20031
                                                                     December 9, 2019
                                  Summary Calendar                     Lyle W. Cayce
                                                                            Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANGELIO PALACIOS DOMINGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CR-143-5


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges
PER CURIAM: *
       Angelio Palacios Dominguez appeals his sentence for conspiracy to
possess with intent to distribute 500 grams or more of methamphetamine and
aiding and abetting possession with intent to distribute 500 grams or more of
methamphetamine. The conspiracy in this case involved two drug transactions
that occurred on October 23, 2017: the first involved approximately one
kilogram of methamphetamine, and during the second, Palacios Dominguez


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-20031    Document: 00515229336     Page: 2   Date Filed: 12/09/2019


                                 No. 19-20031

delivered approximately nine kilograms of methamphetamine. The district
court imposed concurrent 220-months terms of imprisonment, below the
sentencing guidelines range, and concurrent five-year terms of supervised
release. On appeal, Palacios Dominguez challenges the application of the
importation enhancement and the denial of a mitigating role adjustment.
      Although the Government argues that review is for plain error because
Palacios Dominguez raises a different argument challenging the importation
enhancement than what he presented to the district court, we need not
determine the standard of review, as Palacios Dominguez cannot prevail even
under the de novo standard of review. See United States v. Becerril-Pena,
714 F.3d 347, 349 n.4 (5th Cir. 2013); United States v. Rodriguez, 523 F.3d 519,
525 (5th Cir. 2008). To the extent that Palacios Dominguez contends that the
district court misapplied or misinterpreted the Guidelines when it imposed the
U.S.S.G. § 2D1.1(b)(5) enhancement, this court’s review is de novo. See United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      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 under U.S.S.G. § 3B1.2 for a mitigating-role adjustment. § 2D1.1(b)(5).
Palacios Dominguez argues that, for the importation enhancement to apply,
the importation should have to constitute relevant conduct under U.S.S.G.
§ 1B1.3. Because the methamphetamine involved in the offense was imported
from Mexico, Palacios Dominguez has not established that the district court
erred by applying the § 2D1.1(b)(5) enhancement on the grounds that he did
not know the methamphetamine involved in the offense was imported or the
importation of the methamphetamine did not constitute relevant conduct. See
United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014); United States v.
Serfass, 684 F.3d 548, 552 (5th Cir. 2012).



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                                No. 19-20031

      With regard to the denial of a minor role adjustment, the district court
found that Palacios Dominguez was not entitled to the adjustment because he
was an average participant. See U.S.S.G. § 3B1.2; see also United States v.
Bello-Sanchez, 872 F.3d 260, 264 (5th Cir. 2017). A minor participant is “less
culpable than most other participants in the criminal activity, but whose role
could not be described as minimal.” § 3B1.2, comment. (n.5).
      Palacios Dominguez argues that the district court erred by relying on the
quantity of methamphetamine delivered by Palacios Dominguez, the
intercepted texts and phone calls, and the fact that Palacios Dominguez
possessed additional drugs. Instead, he argues, the evidence shows that he
lacked an ownership interest and decision-making authority. However, the
issue turns on his culpability relative to the other participants. See United
States v. Torres-Hernandez, 843 F.3d 203, 208-09 (5th Cir. 2016). Palacios
Dominguez offered no evidence establishing his participation or the
participation of others, United States v. Miranda, 248 F.3d 434, 446 (5th Cir.
2001), and he failed to demonstrate clear error in the district court’s finding
that he was an average participant.       See United States v. Gomez-Valle,
828 F.3d 324, 327 (5th Cir. 2016).
      The district court’s judgment is AFFIRMED.




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