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

                                                  FILED
                                                                          September 22, 2009
                                       No. 09-40084
                                     Summary Calendar                    Charles R. Fulbruge III
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee

v.

BRENDA ANN GAMEZ,

                                                     Defendant-Appellant


                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 2:08-CR-660-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Brenda Ann Gamez appeals the sentence imposed following her guilty plea
conviction for transporting an unlawful alien in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) & (B)(ii). She argues that the district court erred in denying
her a reduction in her offense level for her minor role in the offense pursuant to
U.S.S.G. § 3B1.2. A defendant has the burden of showing that she is entitled to
the downward adjustment.1 Whether the defendant is a minor participant is a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001).
                                            No. 09-40084

factual determination that is reviewed for clear error.2 “A factual finding is not
clearly erroneous if it is plausible in light of the record read as a whole.”3
       Gamez has not shown that the district court clearly erred in finding that
she was not entitled to a minor role adjustment under § 3B1.2. Notwithstanding
that Gamez’s role in transporting the alien child in the offense of conviction may
have been only part of a larger smuggling scheme, Gamez was charged with
transporting an undocumented alien for private financial gain – and the record
demonstrates that she agreed to transport a child who she knew was an
undocumented alien across the United States border for private financial gain.
Gamez’s role was not minor, but was central to the transportation of the
undocumented alien child.4 The district court did not clearly err in denying her
a role adjustment under § 3B1.2.
       Gamez also argues that the district court erred in finding that she should
be held accountable for her relevant conduct in a previous alien smuggling
offense and that the district court erred in denying her a three-level reduction
in her offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. She
argues that she pleaded guilty to and admitted her involvement in the instant
offense of transporting an illegal alien. She argues that the Government failed
to prove that she was involved in the prior alien smuggling offense, and she
affirmatively denied any involvement in the prior offense.
       The district court did not clearly err in finding that Gamez was involved
in the prior alien smuggling offense and should be held accountable for her
relevant conduct in that offense. Further, the district court did not clearly err
in finding that Gamez denied her relevant conduct and, therefore, was not



       2
           United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005).
       3
           Id. at 203 (citation omitted).
       4
        See Garcia, 242 F.3d at 598-99; United States v. Marmolejo, 106 F.3d 1213, 1217 (5th
Cir. 1997).

                                                 2
                                        No. 09-40084

entitled to a reduction in her offense level for acceptance of responsibility.5 The
Presentence Report (PSR) and sentencing transcript support the conclusion that
Gamez was involved in the prior alien smuggling offense, and Gamez
consistently denied her involvement in that offense. Although Gamez was not
required to affirmatively admit relevant conduct, she denied relevant conduct
that the district court found to be true.6 Because the record provides a sufficient
foundation for the district court’s finding that Gamez was involved in the
previous alien smuggling offense and for the district court’s denial of acceptance
of responsibility, the district court did not clearly err in holding Gamez
accountable for her relevant conduct in the prior alien smuggling offense or in
denying a reduction in her offense level for acceptance of responsibility.7
       AFFIRMED.




       5
       See United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002); United States v. Outlaw,
319 F.3d 701, 705 (5th Cir. 2003) (reciting that – for denials of a reduction for acceptance of
responsibility – the standard of review is even more deferential than the pure clearly
erroneous standard).
       6
        See U.S.S.G. § 3E1.1 cmt. n.1(a); United States v. Medina-Anicacio, 325 F.3d 638, 648
(5th Cir. 2003).
       7
           See Medina-Anicacio, 325 F.3d at 648.

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