     Case: 10-40604 Document: 00511391163 Page: 1 Date Filed: 02/23/2011




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

                                                 FILED
                                                                          February 23, 2011
                                     No. 10-40604
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

EDUARDO AGUILERA-SUAREZ,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:10-CR-40-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Eduardo Aguilera-Suarez (Aguilera) was convicted of possession with
intent to distribute 881.98 kilograms of marijuana and was sentenced to 70
months of imprisonment and four years of supervised release.
       Aguilera argues on appeal that the district court committed clear error in
not reducing his offense level by two levels pursuant to U.S.S.G. § 3B1.2 due to
his minor role in the offense. He contends that he was a mere courier, that his
transportation of a large amount of marijuana did not preclude a minor role

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40604 Document: 00511391163 Page: 2 Date Filed: 02/23/2011

                                  No. 10-40604

adjustment, and that the district court should not have relied on his unrelated
criminal history in denying the requested adjustment. However, Aguilera’s
courier status alone did not entitle him to a role adjustment. See United States
v. Brown, 54 F.3d 234, 241 (5th Cir. 1995). Furthermore, Aguilera admitted in
the presentence report, which the district court adopted, and at rearraignment
that he knew that he was transporting marijuana and that he was going to be
paid $1,500 for doing so. Accordingly, Aguilera did not prove by a preponderance
of the evidence that his role in the offense was peripheral, and thus the district
court did not commit clear error in refusing to award Aguilera a minor role
adjustment. See United States v. Villanueva, 408 F.3d 193, 203-04 & n.9 (5th
Cir. 2005); Brown, 54 F.3d at 241.
      AFFIRMED.




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