     Case: 09-41243 Document: 00511282259 Page: 1 Date Filed: 11/02/2010




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

                                                 FILED
                                                                          November 2, 2010

                                       No. 09-41243                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

LUIS SALAS-SANCHEZ

                                                   Defendant-Appellant




                   Appeal from the United States District Court
             for the Southern District of Texas, Brownsville Division
                                  1:09-CR-873-2


Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
       Defendant Luis Salas-Sanchez (Salas) appeals his sentence after a guilty
plea conviction for possession with intent to distribute less than 50 kilograms of
marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); 18 U.S.C. § 2. Salas
argues that the district court committed reversible plain error by assessing one
criminal history point under U.S.S.G. § 4A1.2(c)(1) for a prior evading arrest
conviction that did not result in a term of probation of more than one year,
thereby raising Salas-Sanchez’s criminal history category from III to IV . He

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41243

also argues that the district court erroneously applied the Sentencing Guidelines
by failing to award a minor role adjustment under U.S.S.G. § 3B1.2(b). We
affirm.
                                              I.
       Salas pleaded guilty to possession with intent to distribute 45.3 kilograms
of marijuana. The facts underlying the offense show that, in June 2009, the
operator of a remote video surveillance camera observed three men carrying
large duffel bags on their backs traveling north near a port of entry in
Brownsville, Texas. Border Patrol agents proceeded to the area. As the agents
approached, the three men hid in the brush. Shortly thereafter, agents found
Salas, a codefendant, and a minor lying face down on top of their respective
duffle bags. The three bags contained a total of 19 bricks of marijuana with a
combined weight of 45.3 kilograms.
       After the suspects were taken to a Border Patrol station, Salas waived his
Miranda1 rights and agreed to talk to agents. Salas stated that he and some
other individuals were crossing the Rio Grande River into the United States to
find work when they were approached by an unknown man who forced them to
carry the marijuana and told them they would receive $300 after delivery. The
district court sentenced Salas to 37 months of imprisonment and three years of
supervised release.2 Salas filed a timely notice of appeal.
                                             II.



       1
           Miranda v. Arizona, 384 U.S. 436 (1966).
       2
        Although the PSR and records of the Assistant United States Attorney indicate that
there was a plea agreement, defense counsel asserted during the sentencing hearing that there
was no agreement; as a result, the district court proceeded as if no agreement existed.

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                                  No. 09-41243

      Salas argues on appeal that the district court committed reversible plain
error by assessing one criminal history point under U.S.S.G. § 4A1.2(c)(1) for a
2007 evading arrest conviction that did not result in a term of probation of more
than one year, thereby raising his criminal history category from III to IV. Salas
raised no objections to his criminal history calculation in the district court;
therefore, review is for plain error. United States v. Arviso-Mata, 442 F.3d 382,
384 (5th Cir. 2006). To prevail, Salas must show a forfeited error that is clear
or obvious and affects his substantial rights. Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). “A sentencing error affects a defendant’s substantial rights
if he can show a reasonable probability that, but for the district court’s
misapplication of the Guidelines, [he] would have received a lesser sentence.”
United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010) (internal quotation
marks and citation omitted). Even if such a showing is made, this court has the
discretion to correct the error, but only if it “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Puckett, 129 S. Ct. at
1429 (internal quotation marks and citation omitted).
      The PSR assigned one criminal history point for Salas’s 2007 conviction
for evading arrest. Salas received a sentence of “30 days deferred adjudication
probation” for this offense.    In calculating criminal history, sentences for
misdemeanor and petty offenses are counted, except as provided in § 4A1.2(c)(1)
and (2). Only§ 4A1.2(c)(1) is applicable herein. Sentences for the thirteen
offenses listed under § 4A1.2(c)(1) and “offenses similar to them, by whatever
name they are known” are counted only when the sentence imposed “was a term
of probation of more than one year or a term of imprisonment of at least [30]
days” or when “the prior offense was similar to an instant offense.”             §


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                                        No. 09-41243

4A1.2(c)(1)(A), (B). One of the offenses listed in § 4A1.2(c)(1) is resisting arrest.
Assuming without deciding that              Salas’s 2007 evading arrest conviction is
similar to the enumerated offense of resisting arrest, that prior conviction should
not have affected the calculation of Salas’s criminal history because neither of
the conditions in § 4A1.2(c)(1)(A) or (B) is present in this case. Salas’s sentence
of “30 days deferred adjudication probation” for evading arrest is less than the
required threshold of “a term of probation of more than one year.” Also, evading
or resisting arrest is not similar to the instant offense of drug possession with
intent to distribute. Thus the district court clearly erred by adding one criminal
history point under this provision.
       Next, it is necessary to determine if this plain error affected Salas’s
substantial rights. Puckett, 129 S. Ct. at 1429; John, 597 F.3d at 284-85. A one-
point reduction in Salas’s criminal history calculation reduces his criminal
history category from IV to III and his advisory guidelines range from 37 - 46
months of imprisonment to 30 - 37 months of imprisonment.3                         These two
sentencing ranges overlap by one month, Salas’s sentence is at the very bottom
of the incorrect range and the very top of the correct range. However, when the
calculated and correct sentencing ranges overlap, this court has “shown
considerable reluctance in finding a reasonable probability that the district court
would have settled on a lower sentence” when the defendant’s sentence falls
within both the correct and incorrect guidelines ranges.                   United States v.
Campo-Ramirez, 379 F. App’x 405, 409 (5th Cir. 2010) (unpublished). United
States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010)(Sentence of 85 months using



       3
       Salas’s prior convictions, which resulted in his criminal history category of III, include
two evading arrest convictions and two illegal entry convictions.

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                                   No. 09-41243

a guideline range of 78 to 97 months affirmed, although the correct range was
70 to 87 months.); United States v. Jones, 596 F.3d 273 (5 th Cir. 2010)(Sentence
of 292 months imprisonment using a guideline range of 292 to 365 months
affirmed. The correct guideline range was 262 to 327 months. ); United States
v. Jasso, 587 F.3d 706 (5th Cir. 2009)( Sentence of 46 months using a guideline
range of 46 to 57 months affirmed.      The correct guideline range was 41 to 51
months. )
      The single exception seems to have occurred in United States v. Price, 516
F.3d 285, 290 (5thCir.2008), our first case to consider the effect of overlapping
ranges on a defendant's ability to show a probability of a lesser sentence. In
Price, we vacated and remanded for resentencing, because Price’s sentence fell
near the top of the correct range and the difference between the minimum
sentences under the two ranges was substantial--18 months. Id. at 289 n. 28.
      This court, however, has refused to find reversible plain error in cases
involving only a one-month overlap. In United States v. Cruz-Meza, 310 F. App’x
634, 636-37 (5th Cir.), cert. denied, 130 S. Ct. 86 (2009), this court concluded that
a one-month overlap between the correct and incorrect guidelines ranges
demonstrated “only a possibility of a lesser sentence but for the error, not the
requisite probability” and noted that the defendant could point to nothing in the
record “to bolster his assertion that the district court would have imposed a
lower sentence” in the light of the proper guidelines range. Unlike the instant
case, however, the district court in Cruz-Meza articulated its reasons for the
sentence imposed and its rejection of defense arguments for a variance, noting
‘“it would have been easy”’ to go much higher based on the defendant’s prior
convictions. Id. at 637-38.


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                                  No. 09-41243

      Cruz-Meza distinguished Price as follows:
      Cruz-Meza makes a plausible argument that, in light of our decision
      in United States v. Price, the fact that the correct and incorrect
      Guideline ranges overlap by a single month might demonstrate a
      reasonable probability that, but for the district court's
      misapplication of the Guidelines, the district court would have
      imposed a lower sentence. See Price, 516 F.3d 285, 289-90 & n.28
      (5th Cir. 2008) (finding reversible plain error where incorrect
      Guideline range and correct Guideline range overlapped by five
      months and defendant’s sentence was in the middle of the correct
      Guideline range). In this case, a sentence at the bottom of the
      correct range would be eighteen months, which represents a
      sentence reduction of six months. Six months is somewhat less than
      the difference in minimum sentences addressed in Price and United
      States v. Villegas. See Price, 516 F.3d at 289-90 (eighteen-month
      difference); Villegas, 404 F.3d at 364 (eleven-month difference
      between the bottom of the correct and erroneous Guideline ranges).
      Cruz-Meza relies on Price’s observation that “[w]ith more of an
      overlap between correct and erroneous sentencing ranges, we would
      face a closer question of ‘substantial rights,’” 516 F.3d at 289 n.28,
      to argue that his lesser overlap in ranges makes his an easier case
      than Price. The overlap in Cruz-Meza’s correct and erroneous
      Guidelines sentencing ranges is less than it was in Price, but on this
      record we cannot say that the bare overlap in ranges necessarily
      establishes that Cruz-Meza’s substantial rights were affected. The
      lesser overlap in the sentencing ranges at issue here (24-30 versus
      18-24) than in Price (110-120 versus 92-115), shows only a
      possibility of a lesser sentence but for the error, not the requisite
      probability.
Cruz-Meza, 310 F. App’x at 637.
      In Campo-Ramirez, the court also determined that a one-month overlap
between the correct and incorrect sentencing ranges did not violate the
defendant’s substantial rights because the defendant did not show the requisite
probability of a lower sentence. 379 F. App’x at 408. As in Cruz-Meza, there was


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                                  No. 09-41243

nothing in the record to bolster Campo-Ramirez’s argument that a lower
sentence was probable rather than just possible, particularly in light of the
district court’s consideration and rejection of arguments in favor of a downward
variance. Id. at 408-09.
      The facts in this case do not require a different result. Salas, on his own
behalf, asked the court for “the least, minimum sentence you can give me,” based
on his claims of forced participation in the drug transportation, his fear for the
safety of his family due to threats that were made, and his lack of prior
involvement with drugs. Id.      (Noting that he had always worked in the
construction business). Thereafter, the district court implicitly rejected the
Government’s request for a 41-month sentence and instead imposed a 37-month
sentence, which was at the bottom of Salas’s original (incorrect) guidelines range
of 37 to 46 months. Salas has the burden to persuade us that the district court
would impose a lower sentence if given an opportunity to do so. Nothing in these
facts or in the remainder of the record of Salas’s sentencing indicates that a
lower sentence was probable rather than just possible. Nor is there evidence
that the district court believed the bottom of “any range to be appropriate.”
Jasso, 587 F.3d at 714 n. 11; Jones, 596 F.3d at 279.       Accordingly, Salas’s
substantial rights were not affected by this error.
                                       III.
      Salas also argues on appeal that the court erroneously applied the
Sentencing Guidelines by failing to award a minor role adjustment under
U.S.S.G. § 3B1.2(b) and contends that his role as a drug courier does not
preclude such an adjustment. The district court’s determination of a defendant’s
role is a factual finding reviewed for clear error. United States v. Villanueva,


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                                  No. 09-41243

408 F.3d 193, 203 (5th Cir. 2005). “A factual finding is not clearly erroneous if
it is plausible in light of the record read as a whole.” Id.
      Section 3B1.2(b) provides for a two-level reduction in a defendant’s offense
level if he was a “minor” participant. A defendant’s role is minor if he is “less
culpable than most other participants,” § 3B1.2, comment. (n.5), and
“substantially less culpable than the average participant.”        Id. comment.
(n.3(A)); Villanueva, 408 F.3d at 203-04. Stated differently, the minor-role
adjustment applies to defendants who are only peripherally involved in the
crime. Villanueva, 408 F.3d at 204.
      Since his first meeting with Border Patrol agents when he agreed to waive
his Miranda rights, Salas has consistently maintained that he was forced to
transport the marijuana. Salas raised this issue again at rearraignment, in his
PSR objections, and at sentencing, noting that he had been living and working
in the United States for nine years; had never been involved with drugs before;
had only entered the country to find work to support his pregnant wife and three
children; was not a member of a drug organization; did not know the people who
forced him to transport the drugs; did not care about the amount of money that
he was promised to transport the drugs; and was instead concerned only about
the safety of his family because of threats made when he came upon the
smugglers at the Rio Grande River. The PSR confirms that Salas has no history
of drug offenses.
      None of these facts undermines the district court’s factual finding that
Salas was not entitled to a minor role adjustment. As we stated in United States
v. Gallegos:
      We have held, however, that a defendant may be a courier without
      being either a minimal participant or a minor participant.

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                                  No. 09-41243

      Buenrostro, 868 F.2d at 139. Minimal participant status is not a
      legal conclusion derived by applying the guidelines to factual
      determinations. It, like “manager” status within the meaning of §
      3B1.1, is itself a factual determination. That determination turns
      upon culpability, not courier status. As we said in Buenrostro, a
      defendant may be a courier without being substantially less
      culpable than the average participant. Culpability is a
      determination requiring sensitivity to a variety of factors.
U.S. v. Gallegos, 868 F.2d 711, 713 (5th Cir. 1989); see also United States v.
Jenkins, 487 F.3d 279, 282 (5th Cir. 2007) (a defendant is not entitled to a minor
role adjustment merely because his role was limited to courier).
      The district court did not clearly err in failing to award a minor role
adjustment under U.S.S.G. § 3B1.2(b).
                                       IV.
      For the foregoing reasons, we affirm Salas’s sentence.
AFFIRMED.




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