     Case: 18-40725      Document: 00515014633         Page: 1    Date Filed: 06/28/2019




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

                                    No. 18-40725
                                                                            Fifth Circuit

                                                                          FILED
                                  Summary Calendar                    June 28, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


                                                 Plaintiff-Appellee

v.

JOSE ARMANDO BAZAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:16-CR-1376-4


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Jose Armando Bazan appeals the 24-month
sentence imposed in connection with his conviction for conspiracy to possess
with the intent to distribute 500 grams or more of cocaine. For the first time
on appeal, Bazan contends that the district court plainly erred in failing to
award an offense level reduction under U.S.S.G. § 3B1.2 for having a
mitigating role in the offense.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-40725    Document: 00515014633     Page: 2   Date Filed: 06/28/2019


                                 No. 18-40725

      Whether Bazan was a minor or minimal participant under § 3B1.2 is a
factual determination. See United States v. Villanueva, 408 F.3d 193, 203 (5th
Cir. 2005). Because this issue was a question of fact capable of resolution at
sentencing, the issue “can never constitute plain error.”     United States v.
Fierro, 38 F.3d 761, 774 (5th Cir. 1994).
      Accordingly, the judgment of the district court is AFFIRMED.




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