Case: 19-11101        Document: 00515527736             Page: 1      Date Filed: 08/14/2020




             United States Court of Appeals
                  for the Fifth Circuit
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 19-11101                              August 14, 2020
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
 United States of America,

                                                                   Plaintiff—Appellee,

                                          versus

 Wesley Wayne Wakeford,

                                                               Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:19-CR-112-4


 Before Clement, Higginson, and Engelhardt, Circuit Judges.
 Per Curiam:*
         Wesley Wayne Wakeford pleaded guilty to conspiring to possess with
 intent to distribute methamphetamine and was sentenced within the advisory
 guidelines range to 71 months in prison. On appeal, he challenges the district
 court’s application of a two-level enhancement, its failure to apply a two-level


         *
          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 not be published and is not precedent except under the limited circumstances set forth in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: 19-11101        Document: 00515527736          Page: 2     Date Filed: 08/14/2020




                                     No. 19-11101


 reduction, and its failure to grant a downward variance. We find no error and
 affirm.
           Because Wakeford’s offense involved methamphetamine imported
 from Mexico, the district court applied an enhancement under U.S.S.G.
 § 2D1.1(b)(5).     Wakeford does not dispute the origin of the drug but
 maintains that based on our decision in United States v. Rodriguez, 666 F.3d
 944 (5th Cir. 2012), the enhancement also required a showing of proximity,
 familiarity, and repeated business with the importers. This argument is
 foreclosed by United States v. Foulks, 747 F.3d 914, 914-15 (5th Cir. 2014), as
 Wakeford acknowledges. Although he argues that Foulks was wrongly
 decided, one panel of this court may not overturn the decision of another
 panel absent an intervening change in the law. See Jacobs v. Nat’l Drug
 Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
           Wakeford also contends he should have received a minor-role
 adjustment under U.S.S.G. § 3B1.2(b). Even assuming this contention was
 preserved in the district court, it fails. Whether a defendant qualifies as a
 minor participant under § 3B1.2(b) is a factual question reviewed for clear
 error, and a factual finding is not clearly erroneous if it is plausible in light of
 the record as a whole. See United States v. Gomez-Valle, 828 F.3d 324, 327
 (5th Cir. 2016). A defendant is entitled to a § 3B1.2 adjustment only if he
 shows by a preponderance of the evidence that he is substantially less
 culpable than the average participant in an offense. United States v. Castro,
 843 F.3d 608, 613 (5th Cir. 2016). Wakeford, who presented no evidence
 concerning the offense at issue, has not done that. He fails to establish that
 the district court clearly erred. See Gomez-Valle, 828 F.3d at 327.
           Lastly, we consider Wakeford’s argument that the district court erred
 in not granting a downward variance, a claim that “amounts to a challenge to
 the substantive reasonableness” of the sentence imposed. United States v.




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Case: 19-11101      Document: 00515527736          Page: 3     Date Filed: 08/14/2020




                                   No. 19-11101


 Douglas, 957 F.3d 602, 609 (5th Cir. 2020) (internal quotation marks and
 citation omitted). We review for substantive reasonableness under an abuse-
 of-discretion standard. See United States v. Odom, 694 F.3d 544, 547 (5th Cir.
 2012). Because Wakeford’s 71-month sentence falls within the guidelines
 range of 57 to 71 months, it is entitled to a presumption of reasonableness.
 See United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006). “The
 presumption is rebutted only upon a showing that the sentence does not
 account for a factor that should receive significant weight, it gives significant
 weight to an irrelevant or improper factor, or it represents a clear error of
 judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d
 173, 186 (5th Cir. 2009). Although Wakeford argues that the district court
 failed to consider his allegedly minor role, the record shows that the court
 listened to his arguments in mitigation but assigned greater weight to his
 criminal history. We will not reweigh the district court’s balancing of
 relevant factors, see Douglas, 957 F.3d at 609-10, and accordingly conclude
 that the court’s sentence was substantively reasonable.
        AFFIRMED.




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