     Case: 15-41654      Document: 00513786889         Page: 1    Date Filed: 12/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 15-41654                                FILED
                                                                          December 6, 2016

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

v.

OBED TORRES-HERNANDEZ,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before KING, OWEN, and HAYNES, Circuit Judges.
OWEN, Circuit Judge:
       Obed Torres-Hernandez was charged under 21 U.S.C. § 841(a)(1) and
(b)(1)(C), and 18 U.S.C. § 2 with possession with intent to distribute 95
kilograms of marijuana, and he pled guilty to that offense. 1 He was sentenced
to 57 months of imprisonment 2 and contends on appeal that because his
participation in this drug trafficking offense was limited to carrying a bundle
of marijuana on his back across the border between Texas and Mexico, the



       1 The original indictment alleged more than 100 kilograms of marijuana, but a
subsequent reweigh showed only 95 kilograms.
       2 The defendant was also sentenced to 18 months to run consecutively for violation of

the terms of his probation for a previous offense.
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                                  No. 15-41654
district court erred in failing to grant a downward adjustment of his offense
level.       Torres-Hernandez contends that under § 3B1.2 of the Sentencing
Guidelines, 3 in light of Amendment 794, which became effective on November
1, 2015, he played a minor role in the offense and should have received a two-
level reduction. 4 We affirm the district court’s judgment.
                                        I
         Customs and Border Patrol agents observed six individuals walking
north from the Rio Grande River towards Brownsville, Texas carrying bundles
on their backs. Obed Torres-Hernandez and others were apprehended shortly
thereafter, and five bundles of marijuana were found nearby. Four individuals,
including Torres-Hernandez, were arrested while the other two, who were
juveniles, were released. The four men who were arrested had strap marks on
their backs that were consistent with having carried the bundles. Each of the
men admitted that he knew he was transporting a controlled substance within
the United States.       The bundles, collectively, contained 95 kilograms of
marijuana.
         Torres-Hernandez pled guilty, and he was held accountable for the full
amount of marijuana (95 kilograms) that the four smugglers were jointly
transporting. Torres-Hernandez had prior criminal convictions, including a
conviction in 2010 for possession with intent to distribute 162.75 kilograms of
marijuana.        That offense was committed in the same manner, and in
essentially the same location, as the offense that is the subject of this appeal.
The presentence report calculated the advisory Guideline’s sentencing range
to be 46 to 57 months of imprisonment. This calculation was based on an




         See U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (U.S. SENTENCING COMM’N
         3

2015) [hereinafter U.S.S.G.].
       4 U.S.S.G. app. C, amend. 794, at 116-18 (Supp. Nov. 1, 2015).

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                                   No. 15-41654
offense level of 19 and nine criminal history points, placing Torres-Hernandez
in criminal history category IV.
      Torres-Hernandez objected to this calculation, contending that, under
§ 3B1.2 of the Guidelines, he was entitled to a two-level reduction of his offense
level because as a drug courier, he played only a minor role in the offense. At
the sentencing hearing held on December 2, 2015, counsel argued that Torres-
Hernandez should receive an adjustment based on Amendment 794 to the
Guidelines, which had become effective one month earlier, on November 1,
2015, because he was one of several men crossing the river with a backpack of
marijuana, there was no evidence he was in possession of a radio or map,
Torres-Hernandez did not know the ultimate destination of the drugs, and he
did not have any authority to decide or influence the destination of the drugs.
      The prosecutor countered that Torres-Hernandez had previously
committed the same offense, served 54 months of a mandatory 60 months’
prison sentence, had been deported in January 2014, and had committed the
instant offense in the same manner and place less than one year later. The
prosecutor argued that the district court could infer from this prior conviction
that Torres-Hernandez had some knowledge of the drug trafficking
organization and how it worked. The prosecutor also argued that Torres-
Hernandez’s violation of the law was flagrant and warranted a sentence at the
top of the advisory sentencing range.
      After hearing these arguments, the district court declined to grant a
minor role adjustment and sentenced Torres-Hernandez to 57 months of
imprisonment for the possession-with-intent-to-distribute offense.         Torres-
Hernandez was also in violation of his term of supervised release imposed for
his prior drug trafficking offense, and the district court sentenced him to 18
months of imprisonment consecutive to the 57 months’ sentence.             Torres-
Hernandez appeals his 57 months’ sentence. The sentence for the violation of
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                                     No. 15-41654
supervised release imposed in the prior judgment of conviction is not at issue
in this appeal.
                                           II
      Torres-Hernandez contends that Amendment 794 materially changed
the factors that a sentencing court should consider in deciding whether to apply
a mitigating role adjustment under § 3B1.2. He asserts that the district court
misapplied the law in assessing whether he should have received a minor role
adjustment.
      Section 3B1.2 of the Sentencing Guidelines instructs sentencing courts
to decrease a defendant’s offense level by four levels “[i]f the defendant was a
minimal participant in any criminal activity,” two levels “[i]f the defendant was
a minor participant in any criminal activity,” and three levels if the defendant’s
level of participation fell between minimal and minor. 5 The commentary to
§ 3B1.2 provides that a mitigating role adjustment is available to any
defendant “who plays a part in committing the offense that makes him
substantially less culpable than the average participant.” 6
      Amendment 794 left the text of § 3B1.2 unchanged but made various
revisions to the commentary. 7 The Commission provided various reasons for
the amendment. The Commission first explained that the amendment was a
result of a study that, overall, found the mitigating role provision in the
Guidelines “is applied inconsistently and more sparingly than the Commission
intended.” 8   The Commission then explained that “[i]n drug cases, the
Commission’s study confirmed that mitigating role is applied inconsistently to




      5 U.S.S.G. § 3B1.2.
      6 Id. § 3B1.2 cmt. n.3(A).
      7 See U.S.S.G. app. C, amend. 794, at 117-18 (Supp. Nov. 1, 2015).
      8 Id. at 117.

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drug defendants who performed similar low-level functions (and that rates of
application vary widely from district to district).” The Commission continued,
     [f]or example, application of mitigating role varies along the
     southwest border, with a low of 14.3 percent of couriers and mules
     receiving the mitigating role adjustment in one district compared
     to a high of 97.2 percent in another. Moreover, among drug
     defendants who do receive mitigating role, there are differences
     from district to district in application rates of the 2-, 3-, and 4-level
     adjustments. 9
The amendment does not, however, impose any concrete requirements as to
whether and when drug “couriers and mules,” like Torres-Hernandez, should
receive a mitigating role adjustment and if so, which level of the three options
should apply. Instead, the Commission provided “additional guidance” by
“[s]pecifially . . . address[ing] a circuit conflict and other case law that may be
discouraging courts from applying the adjustment in otherwise appropriate
circumstances.” 10 The Commission additionally provided “a non-exhaustive
list of factors for the court to consider in determining whether an adjustment
applies, and, if so, the amount of the adjustment.” 11
       With regard to the circuit conflict, the Commission noted that the
Seventh and Ninth Circuits had concluded that the “average participant,” as
used in § 3B1.2, “means only those persons who actually participated in the
criminal activity at issue in the defendant’s case, so that the defendant’s
culpability is determined only by reference to his or her co-participants in the
case at hand.” 12 The Commission observed that the First and Second Circuits
had interpreted § 3B1.2 differently, “conclud[ing] that the ‘average participant’



       9 Id.
       10 Id.
       11 Id.
       12 Id. (citing United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006); United

States v. Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994); United States v. DePriest, 6 F.3d 1201,
1214 (7th Cir. 1993)).
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                                        No. 15-41654
also includes ‘the universe of persons participating in similar crimes.’” 13 Under
this latter approach, the Commission said that “courts will ordinarily consider
the defendant’s culpability relative both to his co-participants and to the
typical offender.” 14 The Commission stated that Amendment 794 “generally
adopts the approach of the Seventh and Ninth Circuits,” such that “when
determining mitigating role, the defendant is to be compared with the other
participants ‘in the criminal activity.’” 15           The Commission explained that
“[f]ocusing the court’s attention on the individual defendant and the other
participants is more consistent with the other provisions of Chapter Three,
Part B.” 16
       The Commission also reasoned that at least four Circuit Courts of
Appeals had “denied [a defendant] a mitigating role adjustment solely because
he or she was ‘integral’ or ‘indispensable’ to the commission of the offense.” 17
Disagreeing with this approach, the Commission explained that Amendment
794 “revise[d] the commentary to emphasize that ‘the fact that a defendant
performs an essential or indispensable role in the criminal activity is not
determinative’ and that such a defendant may receive a mitigating role
adjustment, if he or she is otherwise eligible.” 18 The commentary was amended
to specify that “[t]he fact that a defendant performs an essential or
indispensable role in the criminal activity is not determinative [and] [s]uch a
defendant may receive an adjustment under this guideline if he or she is



       13 Id. (quoting United States v. Santos, 357 F.3d 136, 142 (1st Cir. 2004)) (citing United
States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999)).
       14 Id.
       15 Id.
       16 Id. (citing U.S.S.G. § 3B1.2 cmt. n.3(C)).
       17 Id. at 118 (citing United States v. Skinner, 690 F.3d 772,783-84 (6th Cir. 2012);

United States v. Deans, 590 F.3d 907, 910 (8th Cir. 2010); United States v. Panaigua-Verdugo,
537 F.3d 722, 725 (7th Cir. 2008); United States v. Carter, 971 F.2d 597, 600 (10th Cir. 1992)).
       18 Id. (quoting U.S.S.G. § 3B1.2 cmt. n.3(C)).

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                                      No. 15-41654
substantially less culpable than the average participant in the criminal
activity.” 19
       The list of non-exhaustive factors added to the commentary by
Amendment 794 directs a sentencing court to consider:
       (i)      the degree to which the defendant understood the scope and
                structure of the criminal activity;
       (ii)     the degree to which the defendant participated in planning
                or organizing the criminal activity;
       (iii)    the degree to which the defendant exercised decision-making
                authority or influenced the exercise of decision-making
                authority;
       (iv)     the nature and extent of the defendant’s participation in the
                commission of the criminal activity, including the acts the
                defendant performed and the responsibility and discretion
                the defendant had in performing those acts;
       (v)      the degree to which the defendant stood to benefit from the
                criminal activity. 20

       Amendment 794 provides that “a defendant who does not have a
proprietary interest in the criminal activity and who is simply being paid to
perform certain tasks should be considered for an adjustment under this
guideline.” 21
                                            III
       “The district court's ‘interpretation or application of the Sentencing
Guidelines’ is reviewed de novo, while its factual findings are reviewed for clear
error.” 22 Whether a defendant “was a minor or minimal participant is a factual
determination that we review for clear error.” 23 In this context, we have held



       19 Id. at 116.
       20 Id.
       21 Id.
       22 United States v. Lige, 635 F.3d 668, 670 (5th Cir. 2011) (quoting United States v.

Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir.2008)).
       23United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (quoting United

States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
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that “[a] district court's factual findings are not clearly erroneous if they are
‘plausible in light of the record as a whole.’” 24 We have further held that “[a]
party seeking an adjustment in the base level of an offense bears the burden
of proving by a preponderance of the evidence that the adjustment is
warranted.” 25
       The commentary to § 3B1.2 provides guidance for determining when a
defendant who plays a part in committing the offense is “substantially less
culpable than the average participant.” 26 This part of the commentary, which
was essentially unchanged by Amendment 794, explains:
       A defendant who is accountable under §1B1.3 (Relevant Conduct)
       only for the conduct in which the defendant personally was
       involved and who performs a limited function in the criminal
       activity may receive an adjustment under this guideline. For
       example, a defendant who is convicted of a drug trafficking offense,
       whose participation in that offense was limited to transporting or
       storing drugs and who is accountable under §1B1.3 only for the
       quantity of drugs the defendant personally transported or stored
       may receive an adjustment under this guideline. 27
       Torres-Hernandez relies heavily on this provision, but he does not come
within its parameters. He was held accountable for more than “only . . . the
quantity of drugs [he] personally transported.” 28 He was held accountable for
the entire quantity of drugs that the group of men transported. An example in
the commentary to § 1B1.3 addresses the accountability for those who
transport drugs in the manner that Torres-Hernandez did:
       Defendants T, U, V, and W are hired by a supplier to backpack a
       quantity of marihuana across the border from Mexico into the
       United States. Defendants T, U, V, and W receive their individual


       24  United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001) (quoting United States
v. Alford, 142 F.3d 825, 831 (5th Cir.1998)).
        25 Id.
        26 U.S.S.G. § 3B1.2 cmt. n.3(A).
        27 Id.
        28 Id.

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                                            No. 15-41654
      shipments from the supplier at the same time and coordinate their
      importation efforts by walking across the border together for
      mutual assistance and protection. Each defendant is accountable
      for the aggregate quantity of marihuana transported by the four
      defendants. The four defendants engaged in a jointly undertaken
      criminal activity, the object of which was the importation of the
      four backpacks containing marihuana (subsection (a)(1)(B)), and
      aided and abetted each other's actions (subsection (a)(1)(A)) in
      carrying out the jointly undertaken criminal activity (which under
      subsection (a)(1)(B) were also in furtherance of, and reasonably
      foreseeable in connection with, the criminal activity). 29
This example then contrasts when it would be appropriate to hold a defendant
accountable only for the amount he transported:
      In contrast, if Defendants T, U, V, and W were hired individually,
      transported their individual shipments at different times, and
      otherwise operated independently, each defendant would be
      accountable only for the quantity of marihuana he personally
      transported (subsection (a)(1)(A)). As this example illustrates, the
      scope of the jointly undertaken criminal activity may depend upon
      whether, in the particular circumstances, the nature of the offense
      is more appropriately viewed as one jointly undertaken criminal
      activity or as a number of separate criminal activities. See
      Application Note 3(B). 30
Accordingly, the statement in Application Note 3(A) of the Commentary to
Guideline section 3B1.2 that “[a] defendant who is accountable under §1B1.3
(Relevant Conduct) only for the conduct in which the defendant personally was
involved and who performs a limited function in the criminal activity may
receive an adjustment under this guideline” is inapplicable to Torres-
Hernandez.
      Amendment 794’s explanation that “average participant,” as used in
§ 3B1.2, “means only those persons who actually participated in the criminal
activity at issue in the defendant’s case, so that the defendant’s culpability is


      29   U.S.S.G. § 1B1.3 n.4(C)(viii).
      30   Id.
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                                     No. 15-41654
determined only by reference to his or her co-participants in the case at hand” 31
also indicates that the district court correctly construed and applied this
section of the Guidelines.       The only evidence in the record regarding the
participation of others in the possession of the 95 kilograms of marijuana for
distribution pertains to the other individuals who had transported the drugs
on their respective backs. Torres-Hernandez was no more or less culpable than
the other transporters. He did not offer any evidence as to the participation,
or expected participation, of others involved in the growing, further
transportation, or intended sale of this marijuana.
      With regard to the factors added by Amendment 794 to the commentary
accompanying § 3B1.2, the Commission expressly stated that they are non-
exclusive, and they are only factors. We cannot say that the district court
erred, clearly or otherwise, in applying these factors to the facts of this case.
Torres-Hernandez certainly understood that he and those accompanying him
were illegally transporting marijuana within the United States, as part of the
distribution chain. There is no evidence as to his participation in planning or
organizing the criminal activity, or the degree to which he exercised decision-
making authority or influenced the exercise of that authority. This weighs in
favor of an adjustment. The evidence is clear, however, as to the nature and
extent of his participation in this criminal activity and the acts he performed.
He participated in physically transporting the marijuana into the United
States.     He was paid for his participation, though the amount of his
compensation does not appear to be in the record. Another consideration in
the commentary to § 3B1.2 says that “a defendant who does not have a
proprietary interest in the criminal activity and who is simply being paid to


       31 U.S.S.G. app. C, amend. 794, at 117 (Supp. Nov. 1, 2015) (citing United States v.
Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006); United States v. Benitez, 34 F.3d 1489, 1498
(9th Cir. 1994); United States v. DePriest, 6 F.3d 1201, 1214 (7th Cir. 1993)).
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                                              No. 15-41654
perform certain tasks should be considered for an adjustment.” 32 There was
no evidence as to whether Torres-Hernandez had a proprietary interest, but
even if he did not, this is but one factor to be considered by the sentencing
court.
         The Presentence Report does not discuss in any detail a mitigating role
adjustment or any of the factors presented in the commentary. But that is not
dispositive of whether the district court considered the various factors set forth
in the commentary to § 3B1.2. Torres-Hernandez objected to the Presentence
Report and argued that he was entitled to an adjustment because his role in
the offense was minor. The arguments were before the district court.
         In contending that the district court incorrectly applied § 3B1.2, Torres-
Hernandez relies primarily on the district court’s statement at the sentencing
hearing that “getting the drugs into the United States is a critical role and is
not a minor role by any means.” This is not an indication that the district court
relied solely on its view that transporting the marijuana into this country was
a critical role in the offense. Counsel for Torres-Hernandez made arguments,
based on Amendment 794 and the commentary to § 3B1.2, as to why Torres-
Hernandez’s participation should be considered minor. The Government made
counter arguments. The district court was not required to expressly weigh
each factor in § 3B1.2 on the record. Based on the record of what was presented
to the district court in Torres-Hernandez’s written objections, his arguments
at the sentencing hearing, and the Government’s responses, the district court
considered and rejected counsel’s arguments, not because the district court was
unaware of or failed to consider the factors in the commentary to § 3B1.2, but
because it weighed the factors and concluded that based on the offense charged,
which was possession of a controlled substance for distribution, and the


         32   U.S.S.G. § 3B1.2 cmt. n.3(C).
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                                           No. 15-41654
defendant’s role in that offense as compared to the others identified as
participating, Torres-Hernandez was not entitled to an adjustment. 33 The
district court’s finding that Torres-Hernandez was not a minor participant and
that he was not entitled to an adjustment is plausible based on the record.
      The commentary to § 3B1.2, including the explanations in Amendment
794 for the revisions to that commentary, does not require, as a matter of law,
that an adjustment must be made for transporters such as Torres-Hernandez.
The commentary and Amendment 794 instead confirm that there are many
factors that a sentencing court should consider, and how those factors are
weighed remains within the sentencing court’s discretion. The Guidelines
expressly provide that whether to grant a reduction in the offense level based
on a defendant’s participation in the offense “involves a determination that is
heavily dependent upon the facts of the particular case.” 34
                                       *        *         *
      We AFFIRM the district court’s judgment.




      33   See generally United States v. Morosco, 822 F.3d 1, 24 (1st Cir. 2016).
      34   U.S.S.G. § 3B1.2 n.3(C).
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