     Case: 09-11085     Document: 00511174169          Page: 1    Date Filed: 07/15/2010




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

                                                 FILED
                                                                            July 15, 2010
                                     No. 09-11085
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee

v.

SALVADOR MARQUEZ,

                                                   Defendant – Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-67-3


Before HIGGINBOTHAM, BENAVIDES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Salvador Marquez appeals his sentence following his guilty plea conviction
for possession with intent to distribute methamphetamine and aiding and
abetting.    He contends that the district court clearly erred in denying a
mitigating role adjustment under U.S.S.G. § 3B1.2. Section 3B1.2 provides for
a four-level reduction in a defendant’s offense level if the defendant was a
“minimal” participant in a concerted criminal activity, a two-level reduction in
his offense level if he was a “minor” participant, and a three-level reduction if

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-11085

the defendant’s role fell between that of a “minimal” participant and a “minor”
participant.1
       The burden is on the defendant to establish by a preponderance of the
evidence that he is entitled to a mitigating role adjustment under § 3B1.2.2 And
“§ 3B1.2 only applies when a defendant is ‘substantially less culpable than the
average participant.’”3 “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.”4 Whether Marquez
was entitled to a reduction under § 3B1.2 is a factual determination that is
reviewed for clear error.5 “A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.” 6
       Marquez’s statements to authorities concerning his involvement with the
drug trafficking dealings of one of his co-defendants, Jaime Luna, indicate that
Marquez had an established and ongoing relationship with Luna’s drug
trafficking activities and stood to profit from the specific activity that led to the
arrests in this case. Marquez was the only participant in Luna’s drug trafficking
activities who accompanied Luna to both of the transfers of methamphetamine.
After Marquez’s arrest, investigators found inside Marquez’s residence materials
consistent with drug trafficking, such as electronic scales and a clear plastic bag
containing methamphetamine residue that was similar to the bag used in the
transfer of one pound of methamphetamine earlier that day. Luna stated to


       1
           U.S.S.G. § 3B1.2.
       2
           See United States v. Posasa-Rios, 158 F.3d 832, 880 (5th Cir. 1998).
       3
         United States v. Villanueva, 408 F.3d 193, 203–04 (5th Cir. 2005) (quoting § 3B1.2,
cmt. n. 3(A)).
       4
           Id. at 204 (internal quotation marks and citation omitted).
       5
           See id. at 203.
       6
           Id.

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                                     No. 09-11085

investigators that he left this pound of methamphetamine in Marquez’s
possession prior to the transfer. The district court’s finding that Marquez’s role
in the offense did not warrant an adjustment under § 3B1.2 was plausible in
light of the record as a whole and, thus, not clearly erroneous.7
      Marquez alternatively contends that his sentence was substantively
unreasonable due to the district court’s refusal to grant a downward variance
despite his limited role in the drug trafficking activities in this case. Because
Marquez objected to his sentence as unreasonable in the district court, this
argument has been preserved for appeal.8 Marquez’s sentence is presumed
reasonable because it was within his guidelines range,9 and he has not shown
sufficient reason for this court to disturb that presumption.
      AFFIRMED.




      7
          See id., 408 F.3d at 203–04.
      8
          See United States v. Peltier, 505 F.3d 389, 390–91 (5th Cir. 2007).
      9
          See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

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