     Case: 14-10080      Document: 00512809349         Page: 1    Date Filed: 10/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10080
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 21, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

LUIS MIGUEL AMEZQUITA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-117-1


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Luis Miguel Amezquita appeals the sentence
imposed following his guilty plea to possession of heroin with intent to
distribute. He contends that the district court clearly erred in failing to find
that he was a minor participant in a criminal activity and thus qualified for a
minor role adjustment under U.S.S.G. § 3B1.2. Amezquita argues that, when
compared to other participants who secured the drug and distributed it, he was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10080

peripheral to the advancement of the scheme, given his status as a mere
courier.
      Section 3B1.2 provides that if a defendant’s role in any criminal activity
is a minor one, the offense level is to be decreased by two levels. § 3B1.2(b).
Whether a defendant is a minor participant is a factual determination
reviewed for clear error. United States v. Villanueva, 408 F.3d 193, 203 (5th
Cir. 2005). Factual findings are not clearly erroneous if they are plausible in
light of the record as a whole. Id.
      A role adjustment applies to “a defendant who plays a part in committing
the offense that makes him substantially less culpable than the average
participant.” § 3B1.2, comment. (n.3(A)). “It is not enough that a defendant
does less than other participants; in order to qualify as a minor participant, a
defendant must have been peripheral to the advancement of the illicit activity.”
Villanueva, 408 F.3d at 204 (internal quotation marks and citation omitted).
The applicability of § 3B1.2 rests on whether the defendant was minor in
relation to the conduct for which he was held accountable, not in relation to
the criminal enterprise as a whole. United States v. Garcia, 242 F.3d 593, 598
(5th Cir. 2001).
      Amezquita was held accountable for only the drugs that he personally
brought into the United States. His status as merely a mule, however, does
not necessarily qualify him for a minor role adjustment. United States v.
Thomas, 690 F.3d 358, 376 (5th Cir. 2012). Amezquita has not borne his
burden of showing that his participation was peripheral to the advancement of
the criminal activity for which he was held accountable, i.e., possession of
heroin with intent to distribute. See United States v. Posada-Rios, 158 F.3d
832, 880 (5th Cir. 1998). Amezquita flew from Guatemala to New York on at
least two occasions after ingesting dozens of heroin pellets. The sparse facts



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                                   No. 14-10080

recited in the presentence report do not support a finding that either the
individual from whom he obtained the heroin or the individual to whom he
delivered the heroin was more culpable than he with regard to possessing the
heroin   with   intent   to   distribute.   Amezquita’s      international    and
transcontinental travel after ingesting a large amount of heroin supports a
finding that his role was more integral than peripheral to the advancement of
the charged conduct. Cf. United States v. Brown, 54 F.3d 234, 241 (5th Cir.
1995) (holding that a courier had not shown himself to be substantially less
culpable than the average participant where he assisted in transporting the
drugs across state lines, while his confederates stayed in one location to mask
their drug activities). Based on the record before us, we conclude that the
district court did not clearly err in denying Amezquita a minor role adjustment.
See Villanueva, 408 F.3d at 203.
      AFFIRMED.




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