     Case: 12-40639      Document: 00512489425         Page: 1    Date Filed: 01/06/2014




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

                                    No. 12-40639                               FILED
                                  Summary Calendar                       January 6, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JORGE BARRERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:10-CR-1103-5


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jorge Barrera appeals the 97-month, within-guidelines sentence
imposed following his guilty plea conviction of conspiracy to possess with intent
to distribute more than 100 kilograms but less than 1,000 kilograms of
marijuana. He argues that the district court erred by applying a two-level
adjustment to his offense level pursuant to U.S.S.G. § 2D1.1(b)(1) based on a
finding that one of Barrera’s coconspirators possessed a dangerous weapon


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-40639

during the offense. He also argues that the district court erroneously denied
his request for an offense level reduction based on his limited role in the
offense.
      Section 2D1.1(b)(1) provides for a two-level enhancement of the
defendant’s offense level “[i]f a dangerous weapon (including a firearm) was
possessed.” § 2D1.1(b)(1); accord United States v. Cooper, 274 F.3d 230, 244
(5th Cir. 2001). The commentary to § 2D1.1 instructs that “[t]he enhancement
should be applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense.” § 2D1.1 cmt. n.11(A).
      The enhancement will apply where the defendant personally possessed
the weapon or where a coconspirator possessed the weapon during the
conspiracy and the coconspirator’s possession was reasonably foreseeable to
the defendant. See United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir.
2010).     The Government is required to prove the applicability of the
enhancement by a preponderance of the evidence.           Id.; United States v.
Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990). “If the Government
meets that burden, the burden shifts to the defendant to show that it was
clearly improbable that the weapon was connected with the offense.” United
States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010); see also U.S.S.G. § 2D1.1 cmt.
n.11(A).
      Barrera has failed to demonstrate clear error in the district court’s
finding that the enhancement applies because his coconspirator’s possession of
the weapon was reasonably foreseeable to Barrera. Law enforcement agents
observed Barrera’s coconspirator throw the weapon out of the window of the
vehicle they were pursuing, and the coconspirator admitted to owning the
weapon, attempting to discard it, and knowingly participating in the
conspiracy by, inter alia, loading marijuana into the tractor-trailer. Thus, the



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                                 No. 12-40639

Government “show[ed] a temporal and spatial relationship of the weapon, the
drug trafficking activity, and [Barrera’s coconspirator],” see Zapata-Lara, 615
F.3d at 390, and that Barrera’s coconspirator “knowingly possessed the
weapon,” see Aguilera-Zapata, 901 F.2d at 1215. The record also indicates that
Barrera participated in the conspiracy by driving the tractor-trailer loaded
with 967 kilograms of marijuana to a truck stop so that a driver he recruited
could transport the drugs to Houston, all while Barrera maintained
communication with his coconspirator. These facts are sufficient to support
the district court’s imposition of the enhancement based on a finding of
foreseeability. See, e.g., United States v. Mergerson, 4 F.3d 337, 350 (5th Cir.
1994); see also United States v. Cisneros-Gutierrez, 517 F.3d 751, 765–66 (5th
Cir. 2008); Aguilera-Zapata, 901 F.2d at 1216.
      Under U.S.S.G. § 3B1.2, a district court may decrease a defendant’s
offense level by four levels if the defendant was a minimal participant in the
criminal activity, by two levels if the defendant was a minor participant, or by
three levels if the level of participation falls between minimal and minor. A
“minimal participant” is one who is “plainly among the least culpable of those
involved in the conduct of a group,” such as one who demonstrates a lack of
knowledge or understanding of the scope and structure of the enterprise. §
3B1.2 cmt. n.4. A “minor participant” is any participant “who is less culpable
than most other participants, but whose role could not be described as
minimal.” § 3B1.2 cmt. n.5. “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.” United States
v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005) (internal quotation marks and
citation omitted).




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                                 No. 12-40639

      It is the defendant’s burden to show that his role in the offense was minor
or minimal. See United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001). In
determining whether a defendant is entitled to a mitigating role reduction
under § 3B1.2, the district court must consider the broad context of the
defendant’s crime. See United States v. Atanda, 60 F.3d 196, 198 (5th Cir.
1995). The district court’s denial of a mitigating role reduction is a factual
finding reviewed for clear error. Villanueva, 408 F.3d at 203.
      Barrera’s argument that he was entitled to a mitigating role reduction
because he was less culpable than his coconspirators is unavailing. Barrera
worked closely with his coconspirators to ensure that the marijuana-laden
tractor-trailer would be transferred to a driver who would then transport the
load to Houston.     Additionally, Barrera has been held responsible for the
conduct to which he pleaded guilty.
      The district court’s determination that Barrera was similarly situated to
his coconspirators “is plausible in light of the record read as a whole.”
Villanueva, 408 F.3d at 203. Barrera’s participation was essential, and not
merely peripheral, to the advancement of the offense, see id. at 204, and was
“coextensive with the conduct for which he was held accountable,” see Garcia,
242 F.3d at 598-99. Thus, the district court did not clearly err in denying
Barrera a mitigating role adjustment. See Villanueva, 408 F.3d at 203.
      AFFIRMED.




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