     Case: 14-41080      Document: 00513121814         Page: 1    Date Filed: 07/20/2015




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

                                                                                   FILED
                                                                                 July 20, 2015
                                    No. 14-41080
                                  Summary Calendar                              Lyle W. Cayce
                                                                                     Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARTIN GUILLEN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-46-6


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Martin Guillen pleaded guilty to conspiring to possess with intent to
distribute more than five kilograms of cocaine, specifically, approximately
21.98 kilograms gross weight of cocaine, and was sentenced to the 120-month
statutory minimum sentence, which was the guidelines sentence. For the first
time on appeal, he challenges the sufficiency of the factual basis for his guilty
plea and the procedural and substantive reasonableness of his sentence.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41080

      We review for plain error. See United States v. Angeles-Mascote, 206
F.3d 529, 530 (5th Cir. 2000) (factual basis); United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007) (sentence). To establish plain error, Guillen must
show a forfeited error that is clear or obvious that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). Even if Guillen makes
such a showing, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      “To prove conspiracy under 21 U.S.C. § 846, the [G]overnment must
establish that: (1) an agreement existed between two or more persons to
violate federal narcotics law, (2) the defendant knew of the existence of the
agreement, and (3) the defendant voluntarily participated in the conspiracy.”
United States v. Daniels, 723 F.3d 562, 570 (5th Cir. 2013) (internal quotation
marks and citation omitted).        When, as here, the indictment alleges a
conspiracy to distribute an amount of a controlled substance that triggers
enhanced penalties under 21 U.S.C. § 841(b)(1)(A), the Government must also
establish (4) the quantity of the alleged drug. Id. Guillen challenges only the
knowledge and participation elements.
      Guillen admitted that he retrieved packages of what he knew to be
cocaine and delivered them to a codefendant’s apartment. The factual basis
was sufficiently specific to allow the district court to determine that Guillen’s
conduct satisfied the knowledge and participation elements of a conspiracy.
See id.   Guillen has not shown that the district court erred, plainly or
otherwise, in finding a legally sufficient factual basis for his guilty plea.
      Arguably, Guillen’s challenges to the procedural and substantive
reasonableness of his sentence were waived by Guillen’s counsel’s comments




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                                  No. 14-41080

at sentencing. Even if Guillen’s challenges were merely forfeited, for the
reasons addressed below, Guillen has not shown plain error.
      Because the 120-month statutory minimum was greater than the
otherwise applicable guidelines range, 120 months became the guidelines
range. See U.S.S.G. § 5G1.1(b); § 841(b)(1)(A). Any error in calculating the
otherwise applicable range, such as not applying a minimal role reduction, did
not affect Guillen’s substantial rights.
      The district court lacked authority to sentence Guillen below the
statutory minimum because the Government did not file a motion pursuant to
18 U.S.C. § 3553(e), and Guillen was ineligible for the “safety valve” because
he had more than one criminal history point; he had six. See § 3553(f)(1);
U.S.S.G. § 5C1.2(a)(1); see also United States v. Harper, 527 F.3d 396, 411 (5th
Cir. 2008). Guillen’s conclusional assertions that the district court determined
his criminal history category by double counting and that one of his two prior
convictions would not have disqualified him for the safety valve fail to
demonstrate that the district court erred, plainly or otherwise, by not applying
the safety valve.
      AFFIRMED.




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