     Case: 17-10552       Document: 00514439245         Page: 1     Date Filed: 04/20/2018




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

                                     No. 17-10552                               FILED
                                   Summary Calendar                         April 20, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE FACUNDO GARCIA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-224-1


Before BARKSDALE, OWEN, and WILLETT, Circuit Judges.
PER CURIAM: *
       Jose Facundo Garcia pleaded guilty to possession, with intent to
distribute, methamphetamine in violation of 21 U.S.C. § 841(a)(1) and
§ 841 (b)(1)(C). Garcia received a below-Guidelines sentence of 121 months’
imprisonment.       His sole issue on appeal is whether the court committed




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-10552

reversible clear error by denying his request for a mitigating-role adjustment,
pursuant to Guideline § 3B1.2.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      Defendant has the burden of demonstrating by a preponderance of the
evidence his entitlement to a minor or minimal role adjustment. Id.; United
States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016); United States v. Torres-
Hernandez, 843 F.3d 203, 209–10 (5th Cir. 2016). As noted by Garcia, whether
he was a minor or minimal participant is a factual finding, reviewed for clear
error. E.g., United States v. Sanchez-Villarreal, 857 F.3d 714, 721 (5th Cir.
2017). “A factual finding is not clearly erroneous if it is plausible in light of the
record read as a whole.” Id. (quoting United States v. Villanueva, 408 F.3d 193,
203 (5th Cir. 2005)).
      In response to Garcia’s Guideline § 3B1.2 objection, the probation officer
noted Garcia: received financial compensation for being a methamphetamine
distributor; stored methamphetamine and a firearm in his home; and
possessed a digital scale in his vehicle. Further, the investigative material did
not reveal the scope of his involvement in the distribution except to state that
he received the methamphetamine from “Smiley”.               The probation officer



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                                  No. 17-10552

concluded Garcia had provided no substantive information to prove his minor
role and no offense-level reduction was warranted under Guideline § 3B1.2.
The district court overruled the § 3B1.2 objection for the reasons provided by
the probation officer.
      The court’s conclusion that Garcia did not meet his burden to prove his
entitlement to a § 3B1.2 adjustment is plausible in the light of the record as a
whole.   Sanchez-Villarreal, 857 F.3d at 721; Castro, 843 F.3d at 612–13.
Accordingly, the denial of the adjustment was not clear error.
      AFFIRMED.




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