                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3047
                        ___________________________

                             United States of America

                         llllllllllllllllllllPlaintiff - Appellee

                                           v.

                                     Jose Benitez

                       llllllllllllllllllllDefendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: June 10, 2019
                               Filed: July 18, 2019
                                  [Unpublished]
                                  ____________

Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
                           ____________

PER CURIAM.

     On March 19, 2018, Benitez pled guilty to possession with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
Following a September 6, 2018, sentencing hearing the district court1 sentenced
Benitez to a term of 135 months’ imprisonment, the low-end of the applicable
advisory Sentencing Guidelines range. Benitez appeals the district court’s denial of
a minor role reduction. We affirm.

I.    Background

      On March 6, 2016, Arkansas State Police stopped Benitez for a traffic violation
in Russellville, Arkansas. Benitez consented to a search of his vehicle. During the
search, the trooper found 13 packages of methamphetamine hidden in two speaker
boxes. Benitez stated that he was paid $5,000 to transport the drugs.

       Benitez was arrested and transported to Russellville, Arkansas for questioning.
After receiving his Miranda warnings, Benitez reported that a man named “Carlos”
paid him to transport the methamphetamine from California to Atlanta, Georgia.
According to Benitez, Carlos directed him to be in Atlanta by a specific time and
Benitez would receive a phone call with additional instructions. Benitez agreed to
transport the drugs. He rented a vehicle from a friend and met with an associate of
Carlos who gave Benitez a box containing packages of methamphetamine. Benitez
repackaged the drugs and placed them in the speaker boxes. Benitez then loaded the
speaker boxes into the back of the vehicle. During the interview, Benitez stated he
had previously made a similar trip.

       Finding the offense involved more than 4.5 kilograms of methamphetamine,
the court determined that the base offense level was 38. The court found Benitez
qualified for a two-level reduction because he met the criteria under U.S.S.G. §5C1.2
(the safety valve provision). After awarding an additional three-levels for acceptance


      1
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.

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of responsibility and timely notification of his intention to plead guilty, Benitez’s
total adjusted offense level was 33. Benitez was placed in criminal history category
I, yielding an advisory Sentencing Guidelines range of 135 to 168 months. At the
sentencing hearing, Benitez argued for a “minor role adjustment” pursuant to
U.S.S.G. §3B1.2(b). The district court denied the request. Benitez filed a timely
appeal.

II.   Discussion

       Benitez’s sole argument on appeal is the district court erred in refusing to grant
a mitigating-role reduction. “Whether a defendant played a minor role is a question
of fact, reviewed for clear error.” United States v. Young, 689 F.3d 941, 946 (8th Cir.
2012) (citing United States v. Mitchell, 613 F.3d 862, 870 (8th Cir. 2010)). Clear
error exists when the court is left with a definite and firm conviction that a mistake
was made, after viewing the record as a whole. United States v. Finley, 612 F.3d 998,
1002 (8th Cir. 2010) (quoting Perkins v. Grimes, 161 F.3d 1127, 1130 (8th Cir.
1998)). Although we review the district court’s factual findings for clear error, we
review “its application of the guidelines to those facts de novo.” United States v.
Castillo, 713 F.3d 407, 411 (8th Cir. 2013) (citing United States v. Aleman, 548 F.3d
1158, 1163 (8th Cir. 2008)).

       When assessing eligibility for a minor role reduction, the sentencing
commission clarified in Amendment 794 that whether a defendant performed an
essential or indispensable role in the criminal activity is not determinative. United
States v. Hunt, 840 F.3d 554, 557 (8th Cir. 2016) (quoting U.S.S.G. §3B1.2, cmt.
n.3(C)). Instead, the adjustment may be applied when the defendant is “substantially
less culpable than the average participant in the criminal activity.” United States v.
Sharkey, 895 F.3d 1077, 1081 (8th Cir. 2018) (quoting U.S.S.G. §3B1.2, cmt.
n.3(A)). When determining the defendant’s level of participation in the offense for



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purposes of a mitigating-role adjustment, the commentary to §3B1.2 provides that a
district court should consider the following non-exhaustive factors:

      (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.

U.S.S.G. §3B1.2 cmt. n.3(C).

       Benitez places great emphasis on distinguishing his conviction involving
possession of drugs with intent to distribute from drug conspiracy cases. This case
is not one where the government argued, or the district court found Benitez was
ineligible for a mitigating-role reduction because of the nature of his offense. The
relevant inquiry for resolution is whether Benitez has met the criteria entitling him
to a reduction for purposes of calculating his applicable advisory Guidelines range.
Based on our review of the record, Benitez failed to meet his burden, and the district
court’s denial of a mitigating-role reduction was not clear error.

       Benitez asserts he was a minor participant in the offense because he was simply
an “interchangeable mule” and thus the lowest level participant in the offense. We
are unpersuaded by this argument for two reasons. First, we have noted the
importance of transportation in a drug trafficking organization. United States v.
Cartagena, 856 F.3d 1193, 1197 (8th Cir. 2017) (quoting United States v. Adamson,
608 F.3d 1049, 1054 (8th Cir. 2010)). Second, the district court, in denying Benitez’s
request for a minor role reduction, found Benitez was not an uninformed or

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unknowing mule. The court explained that Benitez obtained the form of
transportation, knew the type and quantity of drugs involved, and undertook efforts
to repackage and conceal the drugs inside the vehicle. Even though the district court
did not expressly restate the §3B1.2 factors, the record demonstrates that the district
court considered the appropriate factors and did not commit clear error when making
its factual determinations. See United States v. Rodriguez, 755 F. App’x 598, 600
(8th Cir. 2018) (citing United States v. Torres-Hernandez, 843 F.3d 203, 209 (5th Cir.
2016) (stating “[t]he district court [is] not required to expressly weigh each factor in
§3B1.2 on the record”)).

       An examination of the record and an application of the factors weighs against
granting Benitez a mitigating-role reduction. Benitez agreed to transport drugs for
extra money. He located and rented the vehicle to be used to transport the drugs.
Pre-Sent. Investig. Report.        After Benitez received the 13 packages of
methamphetamine, approximately 16,020 grams, he secreted them inside two speaker
boxes. Pre-Sent. Investig. Report. Benitez admitted to making a previous trip with
similar drugs concealed in the same manner. Pre-Sent. Investig. Report. Benitez did
not object to any of these facts. Although Benitez argues he was a mere mule, these
uncontested facts demonstrate a level of knowledge of the scope of the criminal
activity that is inconsistent with finding him a mere mule. Given the uncontested
facts demonstrating a level of planning and involvement, and a degree of decision-
making, the district court did not clearly err in denying a mitigating-role reduction.

III.   Conclusion

      We find no error in the district court’s application of the Sentencing
Guidelines, and we conclude that the district court did not clearly err in denying a
mitigating-role reduction in this case. Accordingly, we affirm.
                       ______________________________



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