     Case: 16-40126      Document: 00513786905         Page: 1    Date Filed: 12/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-40126
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                December 6, 2016
                                                                           Lyle W. Cayce
              Plaintiff–Appellee,                                               Clerk

v.

JORGE EDUARDO CHANES-HERNANDEZ,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-730-1


Before KING, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jorge Eduardo Chanes-Hernandez was indicted under 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), 846 and 18 U.S.C. § 2, for possessing with intent to
distribute 100 kilograms or more of marijuana.                He pled guilty and was
sentenced to 30 months of imprisonment. He appeals this sentence, contending




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40126

that the district court misapplied § 3B1.2 of the Sentencing Guidelines 1 and
erred in failing to grant a mitigating role adjustment. 2 We affirm.
                                       I
      Border Patrol agents in Cameron County, Texas saw signs of foot traffic
and a cellophane wrapper on a trail. They searched the area, following pieces
of cellophane wrappers, and found ten bundles of marijuana and seven people,
including Chanes-Hernandez, located within 50 to 300 yards of the bundles.
All of the seven subjects who were detained had strap markings on their
shoulders. The bundles collectively contained 729 pounds (330 kilograms) of
marijuana. Ultimately, Chanes-Hernandez was the only suspect who was
indicted for the drug trafficking offense. He confessed that he knew he was
transporting a controlled substance illegally within the United States and said
that he was to have been paid $250.
      The district court accepted Chanes-Hernandez’s guilty plea, and at
sentencing, he was held accountable for the entire amount of marijuana seized.
He does not challenge that determination. The Presentencing Report (PSR)
calculated an advisory Guidelines range of 30 to 37 months of imprisonment.
The PSR had recommended that Chanes-Hernandez not receive a reduction
under § 3B1.2, which is entitled “Mitigating Role,” and he filed a motion
seeking an adjustment to his offense level, contending that his role was minor.
The district court denied that motion and sentenced him to 30 months of
imprisonment. This appeal followed.




      1  U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (U.S. SENTENCING COMM’N 2015)
[hereinafter U.S.S.G.].
       2 See id.



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                                             II
       Chanes-Hernandez was sentenced January 25, 2016, after Amendment
794, which amended the commentary to § 3B1.2, became effective November
1, 2015. The parties agree that the amended commentary to § 3B1.2 applies,
and sentencing courts generally apply “the Guidelines Manual in effect at the
date of sentencing.” 3      The motion that Chanes-Hernandez filed seeking a
reduction of his offense level, and his arguments to the district court at the
sentencing hearing in support of that motion, relied on Amendment 794. There
is no contention that the district court applied the version of § 3B1.2 in effect
prior to the November 1, 2015 amendments. Chanes-Hernandez contends only
that the district court misconstrued and misapplied the commentary to
§ 3B1.2, as amended.
       We recently issued a published decision involving very similar facts, in
United States v. Torres-Hernandez. 4 In the interest of brevity, we will not
repeat that opinion’s discussion of the reasons the Commission expressed for
promulgating Amendment 794. 5
       “The district court's ‘interpretation or application of the Sentencing
Guidelines’ is reviewed de novo, while its factual findings are reviewed for clear
error.” 6 Whether a defendant “was a minor or minimal participant is a factual
determination that we review for clear error.” 7 In this context, we have held
that “[a] district court's factual findings are not clearly erroneous if they are




       3 See United States v. Gomez-Valle, 828 F.3d 324, 330 (5th Cir. 2016); United States v.
Huff, 370 F.3d 454, 465 (5th Cir. 2004); accord U.S.S.G. § 1B1.11(a).
       4 __ F.3d __ (5th Cir. 2016).
       5 See id.
       6 United States v. Lige, 635 F.3d 668, 670 (5th Cir. 2011) (quoting United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)).
       7 Gomez-Valle, 828 F.3d at 327 (quoting United States v. Villanueva, 408 F.3d 193,

203 (5th Cir. 2005)).

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‘plausible in light of the record as a whole.’” 8 We have further held that “[a]
party seeking an adjustment in the base level of an offense bears the burden
of proving by a preponderance of the evidence that the adjustment is
warranted.” 9
       In his motion in the district court for a mitigating role adjustment under
§ 3B1.2, Chanes-Hernandez cited Application Note 3(A), contending that his
participation in the offense was limited to transporting drugs and that he was
held accountable under § 1B1.3 of the Guidelines only for the quantity he
personally transported.         Chanes-Hernandez reasserts this argument on
appeal. However, he is incorrect both as to the facts and as to what the
Guidelines provide. Application Note 3(A) to § 3B1.2 provides guidance for
determining when a defendant who plays a part in committing the offense is
“substantially less culpable than the average participant.” 10 This part of the
commentary, which was essentially unchanged by Amendment 794, explains:
       A defendant who is accountable under §1B1.3 (Relevant Conduct)
       only for the conduct in which the defendant personally was
       involved and who performs a limited function in the criminal
       activity may receive an adjustment under this guideline. For
       example, a defendant who is convicted of a drug trafficking offense,
       whose participation in that offense was limited to transporting or
       storing drugs and who is accountable under §1B1.3 only for the
       quantity of drugs the defendant personally transported or stored
       may receive an adjustment under this guideline. 11
       Chanes-Hernandez was held accountable for more than “only . . . the
quantity of drugs [he] personally transported.” 12 He was held accountable for



       8  United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001) (quoting United States
v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)).
        9 Id. (citing United States v. Patterson, 962 F.2d 409, 414 (5th Cir. 1992)).
        10 U.S.S.G. § 3B1.2 n.3(A).
        11 Id.
        12 Id.



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the 729 pounds (330 kilograms) of marijuana that the group of which he was a
part transported.         An example in Application Note 4(C)(viii) to § 1B1.3
addresses the culpability of transporters such as Chanes-Hernandez:
     Defendants T, U, V, and W are hired by a supplier to backpack a
     quantity of marihuana across the border from Mexico into the
     United States. Defendants T, U, V, and W receive their individual
     shipments from the supplier at the same time and coordinate their
     importation efforts by walking across the border together for
     mutual assistance and protection. Each defendant is accountable
     for the aggregate quantity of marihuana transported by the four
     defendants. The four defendants engaged in a jointly undertaken
     criminal activity, the object of which was the importation of the
     four backpacks containing marihuana (subsection (a)(1)(B)), and
     aided and abetted each other's actions (subsection (a)(1)(A)) in
     carrying out the jointly undertaken criminal activity (which under
     subsection (a)(1)(B) were also in furtherance of, and reasonably
     foreseeable in connection with, the criminal activity). 13
This example then contrasts when it would be appropriate to hold a defendant
accountable only for the amount he transported:
     In contrast, if Defendants T, U, V, and W were hired individually,
     transported their individual shipments at different times, and
     otherwise operated independently, each defendant would be
     accountable only for the quantity of marihuana he personally
     transported (subsection (a)(1)(A)). As this example illustrates, the
     scope of the jointly undertaken criminal activity may depend upon
     whether, in the particular circumstances, the nature of the offense
     is more appropriately viewed as one jointly undertaken criminal
     activity or as a number of separate criminal activities. See
     Application Note 3(B). 14
Accordingly, the statement in Application Note 3(A) to § 3B1.2 that “[a]
defendant who is accountable under § 1B1.3 (Relevant Conduct) only for the
conduct in which the defendant personally was involved and who performs a



     13   Id. § 1B1.3 n.4(C)(viii).
     14   Id.

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limited function in the criminal activity may receive an adjustment under this
guideline” is inapplicable to Chanes-Hernandez.
      In his motion in the district court for a mitigating role adjustment,
Chanes-Hernandez quoted Application Note 3(C) to § 3B1.2, which provides
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.” 15          As noted, Chanes-
Hernandez told authorities when he was apprehended that he was to have
been paid $250 for transporting marijuana.           However, the commentary’s
statement that a defendant who comes within this parameter should be
considered for an adjustment is not a requirement that the district court grant
an adjustment. It is one of many factors to be considered by a sentencing court.
      Chanez-Hernandez also contended in his motion that he lacked
knowledge of the scope and structure of the enterprise and did not participate
in planning or organizing the criminal activity. While Chanez-Hernandez may
not have been aware of the entire scope or structure of the activity and may
not have participated in planning or organizing the possession of this
marijuana by the transporters, he was certainly aware that the ten bundles of
a controlled substance, a substantial amount, was being transported by a
group illegally. He also knew that the purpose of his activity was to further
the distribution and sale of this large quantity of a controlled substance within
the United States.         The street value of the marijuana was approximately
$583,000.
      At the sentencing hearing, the district court treated the motion for a
mitigating role adjustment as an objection to the PSR and overruled the
objection, stating: “I’m going to overrule the objection. I found that his role


      15   Id. § 3B1.2 n.3(C).

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was a critical function in bringing the drugs in the United States and he was
not [a] minor participant.” Counsel for Chanes-Hernandez then called the
district court’s attention to the statement in the commentary to § 3B1.2 that
“[t]he fact that a defendant performs an essential or indispensable role in the
criminal activity is not determinative.     Such a defendant may receive an
adjustment under this guideline if he or she is substantially less culpable than
the average participant in the criminal activity.” 16 Counsel then reiterated
arguments that Chanes-Hernandez did not plan the offense and did not have
a proprietary interest in the drugs. The district court was unpersuaded and
denied the objection to the PSR.
      On appeal, Chanes-Hernandez contends that the district court
misapplied the Guidelines and gave controlling weight to a single factor.
Chanes-Hernandez relies on the district court’s statement at the sentencing
hearing that Chanes-Hernandez’s “role was a critical function in bringing the
drugs in the United States.” As an initial matter, we do not take the district
court’s statement to mean that it based its decision to deny an offense
adjustment solely on this finding. The district court also stated “and [Chanes-
Hernandez] was not [a] minor participant.” This factual finding is supported
by many of the factors set forth in the commentary to § 3B1.2. We do not view
the district court’s brief statement as encompassing all of its findings and
conclusions and excluding all others. The district court was not required to
state on the record how it weighed each of the many considerations set forth in
§ 3B1.2.
      The record, when viewed as a whole, reflects that Chanes-Hernandez’s
arguments were presented in writing and orally to the district court and that
the district court considered them.      The district court had the facts and


      16   Id.

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competing conclusions that could be drawn from them before it. The court’s
factual finding that Chanes-Hernandez was not a minor participant is not
clearly erroneous.
       In addition to the factors discussed above, the evidence fully supports
the district court’s implicit conclusion that Chanes-Hernandez was not
substantially less culpable than the average participant in the criminal offense
of which he was convicted.               Amendment 794 explains that “average
participant,” as used in § 3B1.2, “means only those persons who actually
participated in the criminal activity at issue in the defendant’s case, so that
the defendant’s relative culpability is determined only by reference to his or
her co-participants in the case at hand.” 17 Chanes-Hernandez was no more or
less culpable than the other transporters of the marijuana. There was no
evidence as to the participation, or expected participation, of others involved
in this offense.
       The Presentence Report does not discuss in any detail a mitigating role
adjustment. But that is not dispositive of whether the district court considered
the various factors set forth in the commentary to § 3B1.2.
       The commentary to § 3B1.2, including the explanations in Amendment
794 for the revisions to that commentary, does not require, as a matter of law,
that an adjustment must be made for transporters such as Chanes-Hernandez.
The commentary and Amendment 794 instead confirm that there are many
factors that a sentencing court should consider, and how those factors are
weighed remains within the sentencing court’s discretion. The Guidelines
expressly provide that whether to grant a reduction in the offense level based



       17 U.S.S.G. app. C, amend. 794, at 116-18 (Supp. Nov. 1, 2015) (citing United States v.
Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006); United States v. Benitez, 34 F.3d 1489, 1498
(9th Cir. 1994); United States v. DePriest, 6 F.3d 1201, 1214 (7th Cir. 1993)).

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on a defendant’s participation in the offense “involves a determination that is
heavily dependent upon the facts of a particular case.” 18
                                      *        *     *
      We AFFIRM the district court’s judgment.




      18   U.S.S.G. § 3B1.2 n.3(C).

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