     Case: 11-40342     Document: 00511700187         Page: 1     Date Filed: 12/19/2011




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

                                                                            FILED
                                                                        December 19, 2011
                                     No. 11-40342
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JORGE EDUARDO FLORES-HERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:10-CR-959-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Jorge Eduardo Flores-Hernandez (Flores) appeals
the 75-month sentence imposed following his guilty plea conviction of possession
with intent to distribute more than five kilograms of cocaine. He contends that
the district court clearly erred by denying him a two-level reduction for his
minor role in the offense because he served as a mere courier.
        Following United States v. Booker, 543 U.S. 220 (2005), we continue to
review a district court’s application of the Sentencing Guidelines de novo and its

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40342   Document: 00511700187      Page: 2    Date Filed: 12/19/2011

                                  No. 11-40342

factual findings for clear error. See United States v. Villanueva, 408 F.3d 193,
203 & n.9 (5th Cir. 2005). Whether Flores was a minor participant is a fact
question that we review for clear error. Id. at 203.
      Flores’s role in transporting approximately 24.7 kilograms of cocaine
across the border was more than peripheral, as a courier is often “indispensable”
to a drug-smuggling operation. United States v. Buenrostro, 868 F.2d 135, 138
(5th Cir. 1989). Accordingly, his assertion that he was merely a courier does not
automatically entitle him to a minor-role adjustment. See United States v.
Franklin, 561 F.3d 398, 407 (5th Cir. 2009); United States v. Nevarez-Arreola,
885 F.2d 243, 245 (5th Cir. 1989).
      For purposes of § 3B1.2, a defendant’s participation in the offense is not
to be evaluated with reference to the entire criminal enterprise of which the
defendant was a part, but in relation to the conduct for which the defendant was
held accountable. United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001).
Therefore, a defendant’s participation in an offense is not minor if it is
“coextensive with the conduct for which he was held accountable.” Id. As
Flores’s sentence was based entirely on the conduct in which he was directly
involved and the quantity of drugs that he personally transported, a minor-role
adjustment was not required. See id.
      As Flores thus did not establish that his role in the offense was peripheral,
the district court did not clearly err in refusing to award a minor-role
adjustment. See id.; United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995).
The judgment of the district court is AFFIRMED.




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