     Case: 16-50564      Document: 00513967836         Page: 1    Date Filed: 04/25/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 16-50564                               FILED
                                                                             April 25, 2017
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

              Plaintiff - Appellee

v.

MIGUEL CAMPOS JIMENEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC 3:15-CR-1306-1


Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Miguel Campos Jimenez appeals his sentence for possession with intent
to distribute marijuana. Specifically, he challenges the district court’s denial
of a minor role adjustment under U.S.S.G. § 3B1.2(b), which allows for a two-
level reduction in a defendant’s offense level if the defendant was a minor
participant in the criminal activity. Campos also argues that his sentence is
substantively unreasonable. We affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50564
                                         I
      In July 2015, Campos was arrested at a U.S. Border Patrol checkpoint
in Sierra Blanca, Texas, after a narcotics-detecting canine alerted agents to
176 wrapped bundles of marijuana concealed in the vehicle Campos was
driving. On January 4, 2016, Campos pleaded guilty without a plea agreement
to one count of possession with intent to distribute marijuana, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D).       The Presentence Report (PSR)
calculated a Sentencing Guidelines range of 33 to 41 months of imprisonment,
based on an offense level of 19 and a criminal history category of II.           In
calculating Campos’s Guidelines range, the PSR noted that “there [was]
insufficient information to accurately assess [Campos’s] role in the instant
offense.” As a result, the PSR concluded that “an adjustment for role in the
instant offense [was] not warranted.”
      Campos objected to the PSR on the ground that he should receive a two-
level adjustment as a minor participant in the criminal activity pursuant to
U.S.S.G. § 3B1.2(b).     At his request, the district court reset the initial
sentencing proceeding to allow Campos to present facts to show that he was
entitled to an adjustment. In a letter to the court, Campos explained that
financial difficulties had led him to contact a former associate, “Shadow,” to
ask for work transporting drugs. According to Campos, Shadow offered to pay
him $50 per pound to smuggle 70 pounds of marijuana across the border.
Shadow purchased a vehicle to transport the marijuana and instructed
Campos to register it in Texas. At a later meeting, Shadow took the vehicle,
returned four hours later, and told Campos to drive through the Sierra Blanca
checkpoint, after which he would receive further instructions.                 The
Government reviewed the facts Campos provided and took no position on the
issue of his role in the offense.


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                                 No. 16-50564
      At sentencing, the district court gave Campos’s attorney an opportunity
to reiterate Campos’s arguments in favor of the adjustment. After hearing
from both Campos and his attorney, however, the court ultimately determined
that it would not grant the reduction, explaining that it was not “appropriate
in this case.” The court imposed a 33-month term of imprisonment and a three-
year term of supervised release. Campos now appeals, challenging the district
court’s denial of the minor role adjustment and contending that the sentence
imposed is substantively unreasonable.
                                       II
      Campos first argues that the district court erred by refusing to apply
U.S.S.G. § 3B1.2, which “provides a range of adjustments for a defendant who
plays a part in committing the offense that makes [the defendant]
substantially less culpable than the average participant[.]”      § 3B1.2 cmt.
n.3(A). This court reviews a district court’s interpretation and application of
the Sentencing Guidelines de novo and its factual findings for clear error.
United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016). Whether a
defendant qualifies as a minor participant in the criminal activity is a factual
finding that we review for clear error. United States v. Garcia, 242 F.3d 593,
597–98 (5th Cir. 2001). So long as a factual finding is plausible in light of the
record as a whole, it is not clearly erroneous and should be upheld. United
States v. Alaniz, 726 F.3d 586, 618–19 (5th Cir. 2013). A defendant seeking an
adjustment based on a mitigating role “bears the burden of proving by a
preponderance of the evidence that the adjustment is warranted.” United
States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016) (quoting United
States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001)); see also United States v.
Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir. 2005).
      Section 3B1.2 instructs sentencing courts to decrease a defendant’s
offense level by four levels “[i]f the defendant was a minimal participant in any
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                                   No. 16-50564
criminal activity,” two levels “[i]f the defendant was a minor participant in any
criminal activity,” and three levels if the defendant’s participation fell
somewhere in between “minimal” and “minor.” U.S.S.G. § 3B1.2. Minimal
participants “are plainly among the least culpable of those involved in the
conduct of a group.” § 3B1.2 cmt. n.4. By contrast, minor participants are “less
culpable than most other participants in the criminal activity, but whose role
could not be described as minimal.” § 3B1.2 cmt. n.5.
       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.”      § 3B1.2 cmt. n.3(C). In assessing
culpability, the commentary to § 3B1.2 provides a non-exhaustive list of factors
for courts 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.
Id.   The commentary also notes 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.” Id.
       We have emphasized that the factors listed in the commentary to § 3B1.2
“are nonexclusive, and . . . are only factors.” Torres-Hernandez, 843 F.3d at


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209. Further, “how [the] factors are weighed remains within the sentencing
court’s discretion.” Id. at 210; see also United States v. Chanes-Hernandez, No.
16-40126, 2016 WL 7118500, at *3 (5th Cir. Dec. 6, 2016) (unpublished)
(clarifying that the commentary’s discussion of a defendant’s lack of
proprietary interest in the criminal activity “is not a requirement that the
district court grant the adjustment,” but is instead “one of many factors to be
considered by a sentencing court”). We have also observed that “[a] defendant’s
role ‘turns upon culpability, not courier status.’” United States v. Aguilera, 655
F. App’x 213, 216 (5th Cir. 2016) (unpublished) (quoting United States v.
Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989)).
      Campos contends that, in light of the factors listed in the commentary,
the district court clearly erred by finding that he did not have a minor role in
the offense. He argues that he did not know where the marijuana originated
from or its final destination and that Shadow was his only contact—facts which
he contends show that he did not know the scope of the operation or participate
in planning. Moreover, he argues, he did not have decision-making authority
or discretion, and he had no proprietary interest in the smuggling operation
and was simply paid to register the vehicle and drive through the checkpoint.
      These arguments were before the district court when it made its
determination and were considered, but ultimately rejected. In doing so, the
district court highlighted a number of other relevant factors, such as the large
quantity of marijuana Campos was transporting and his previous involvement
in the drug trade, including a prior conviction for the same offense. The PSR,
which the district court adopted, also reflected Campos’s previous involvement
in similar criminal activity, noting that, in addition to his prior conviction for
importation of marijuana, Campos admitted to successfully smuggling
marijuana into the United States on three other occasions for the same drug
trafficking organization. See Torres-Hernandez, 843 F.3d at 205 (upholding
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                                       No. 16-50564
denial of the adjustment where “[t]he prosecutor argued that the district court
could infer from [a] prior conviction that [the defendant] had some knowledge
of the drug trafficking organization and how it worked”). And, by Campos’s
own admission, he was the person who initiated contact with and sought out
his former associate, Shadow, to again secure work in a drug transport
operation.
       Based on the facts described by the district court at sentencing, as well
as those in the PSR and Campos’s letter to the court, the district court’s
determination that Campos was not a minor participant and thus not entitled
to an adjustment is plausible based on the record, even if a contrary conclusion
would have been plausible as well. See Torres-Hernandez, 843 F.3d at 210; see
also United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016) (“A
district court . . . may grant a minor role reduction even if some of the factors
weigh against doing so, and it may deny a minor role reduction even if some of
the factors weigh in favor of granting a reduction.”); United States v.
Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016) (“The district court’s choice
between two permissible views of the evidence as to the defendant’s role in the
offense will rarely constitute clear error [s]o long as the basis of the trial court’s
decision is supported by the record and does not involve a misapplication of a
rule of law.” (internal quotation marks and citation omitted)). And the record
makes clear that Campos’s arguments in favor of the adjustment “were
presented in writing and orally to the district court and that the district court
considered them.” Chanes-Hernandez, 2016 WL 7118500, at *4. 1




       1  Although the PSR did “not discuss in any detail a mitigating role adjustment or any
of the factors presented in the commentary[,] . . . [t]hat is not dispositive of whether the
district court considered the various factors set forth in the commentary to § 3B1.2.” Torres-
Hernandez, 843 F.3d at 209. Moreover, “[t]he district court was not required to expressly
weigh each factor in § 3B1.2 on the record.” Id.
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                                    No. 16-50564
      Accordingly, the district court’s denial of the minor role adjustment did
not constitute clear error.
                                          III
      Campos next argues that his within-guidelines sentence is substantively
unreasonable because it is greater than necessary to achieve the sentencing
goals of 18 U.S.C. § 3553(a).      “A discretionary sentence imposed within a
properly calculated guidelines range is presumptively reasonable.” United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). A defendant
may rebut the reasonableness presumption “only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Because Campos did not object in the
district court to the substantive reasonableness of the sentence, we review only
for plain error. United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013).
“Under this standard, we will disturb the sentencing determination only if ‘(1)
there is error . . . , (2) it is plain; and (3) it affects substantial rights.’” United
States v. Powell, 732 F.3d 361, 381 (5th Cir. 2013) (alteration in original)
(quoting United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007)). If those
requirements are satisfied, we may exercise our discretion to correct the error
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Peltier, 505 F.3d at 392 (alteration in original) (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)).
      Campos contends that his sentence represents a clear error of judgment
because his personal history and circumstances mitigated the seriousness of
the offense, requiring a lower sentence. However, the district court was aware
of and discussed Campos’s history and characteristics when it imposed the
within-guidelines sentence, and the record is clear that the district court
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considered those factors. As we have explained, “the sentencing judge is in a
superior position to find facts and judge their import under § 3553(a) with
respect to a particular defendant.” Campos-Maldonado, 531 F.3d at 339. In
effect, Campos disagrees with the district court’s decision and asks this court
to reweigh the § 3553(a) factors, but that is outside the scope of our review.
See Gall v. United States, 552 U.S. 38, 51 (2007).
      Finally, relying on the Supreme Court’s decision in Kimbrough v. United
States, 552 U.S. 85 (2007), Campos argues that his sentence is excessive,
because U.S.S.G. § 2D1.1 is not empirically based and overstates the
significance of the type and quantity of drug involved. As the Government
notes, we have repeatedly rejected this argument. See United States v. Duarte,
569 F.3d 528, 530–31 (5th Cir. 2009) (concluding that Kimbrough does not
question the presumption of reasonableness or require an independent
analysis of the empirical grounding behind each individual guideline); see also
United States v. Rodriguez, 660 F.3d 231, 232–33 (5th Cir. 2011); United States
v. Mondragon–Santiago, 564 F.3d 357, 367 (5th Cir. 2009).
      Accordingly, Campos has failed to show that the 33-month sentence
constituted reversible plain error.
                                      IV
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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