     Case: 17-10352      Document: 00514294598         Page: 1    Date Filed: 01/04/2018




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


                                    No. 17-10352                                FILED
                                  Summary Calendar
                                                                          January 4, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KRYSTA NICOLE GAINES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-173-2


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Krysta Nicole Gaines appeals her sentence of 151 months of
imprisonment and three years of supervised release following her guilty-plea
conviction for possession with the intent to distribute methamphetamine.
Gaines contends that the district court clearly erred in finding that she was
not entitled to a mitigating role reduction under U.S.S.G. § 3B1.2.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10352

      Gaines first challenges the determination in the presentence report
(PSR), which was adopted by the district court, that she actively assisted her
co-participant in counter-surveillance.    Given Gaines’s failure to offer any
contrary sworn testimony or other rebuttal evidence to refute this fact, the
district court was free to adopt the PSR’s finding without further inquiry. See
United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).
      Gaines also argues that, under § 3B1.2, comment. (n.3(A)), her mere
assistance in delivering the drugs was insufficient to demonstrate that she was
an ordinary participant in the transaction.        However, this commentary
explains that a mitigating role adjustment may apply to defendants who were
held accountable for only the quantity of drugs they personally transported or
stored. Since the district court also held Gaines accountable for the quantity
of methamphetamine carried by her co-participant, she does not come within
the parameters of § 3B1.2, comment. (n.3(A)). See United States v. Torres-
Hernandez, 843 F.3d 203, 207-08 (5th Cir. 2016).
      Nor is there merit to Gaines’s further suggestion that the case should be
remanded because it is unclear whether, in determining that she was not
substantially less culpable than the average participant, the PSR, and by
extension the district court, compared her actions to those of the only other co-
participant.   This case is distinguishable from United States v. Sanchez-
Villarreal, 857 F.3d 714, 721-22 (5th Cir. 2017), on which Gaines relies. In
remanding that case, we found significant that the defendant had been
resentenced under Federal Rule of Criminal Procedure 35, which did not occur
here; moreover, the district court there had not applied a relevant clarifying
amendment to the guideline commentary that went into effect after the
defendant was sentenced. Id. Furthermore, in United States v. Bello-Sanchez,
872 F.3d 260, 266 & n.7 (5th Cir. 2017), we rejected a defendant’s request for



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                                  No. 17-10352

a remand based on the district’s court’s alleged failure “to articulate a
permissible factual basis for denying the mitigating-role adjustment,”
explaining that a remand would be appropriate only where the defendant had
requested such an articulation of facts by the district court, which also did not
occur here.
      Finally, Gaines complains that the facts did not support the district
court’s conclusions under the factors set forth in § 3B1.2, comment. (n.3)(C))
that she: understood the scope and structure of the criminal activity;
significantly participated in the planning or organizing of the criminal activity;
influenced her co-participant’s decision-making authority; participated
significantly in the criminal activity; and stood to benefit from the criminal
activity. As previously discussed, the district court was free to adopt the PSR’s
unrebutted finding that Gaines actively assisted her co-participant in counter-
surveillance; for the same reason, the district court was free to adopt the PSR’s
other unrebutted finding that Gaines actively assisted her co-participant in
conducting the drug transaction. See Mir, 919 F.2d at 943. The district court’s
findings under § 3B1.2, comment. (n.3(C)) regarding the level of involvement
of Gaines, who was admittedly in a romantic relationship with her co-
participant, are plausible in light of the record as a whole and thus not clearly
erroneous. See United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013);
United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
      In any event, Gaines was required to bear “the burden of proving by a
preponderance of the evidence that the [mitigating role] adjustment was
warranted.” United States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016) (internal
quotation marks, brackets, and citation omitted). Gaines failed to satisfy her
burden of establishing her entitlement to a mitigating role adjustment by
“show[ing] by a preponderance of the evidence: (1) the culpability of the



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average participant in the criminal activity; and (2) that she was substantially
less culpable than that participant.” Id. at 613 (internal footnote omitted).
Accordingly, the district court did not clearly err in concluding that Gaines was
not entitled to a mitigating role reduction under § 3B1.2. See Alcantar, 733
F.3d at 146.
      In light of the foregoing, the judgment of the district court is AFFIRMED.




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