     Case: 10-10498     Document: 00511568829         Page: 1     Date Filed: 08/11/2011




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

                                                                            FILED
                                                                          August 11, 2011
                                     No. 10-10498
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESUS ORTEGA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-160-4


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Jesus Ortega pleaded guilty to conspiracy to smuggle goods from the
United States. He was sentenced to 48 months of imprisonment and three years
of supervised release. He now appeals, arguing that he was entitled to a minor
participant adjustment pursuant to U.S.S.G. § 3B1.2(b).
        Whether a defendant is a minor participant is a “sophisticated factual
determination” reviewed for clear error. United States v. Garcia, 242 F.3d 593,
597-98 (5th Cir. 2001) (citation omitted). “[I]n order to qualify as a minor

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10498    Document: 00511568829      Page: 2   Date Filed: 08/11/2011

                                  No. 10-10498

participant, a defendant must have been peripheral to the advancement of the
illicit activity.” United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001)
(citation omitted). Ortega wrapped and concealed 33 firearms and thousands of
rounds of ammunition in a vehicle and participated in the attempted exportation
of the firearms from the United States to Mexico. He was aware the guns were
being smuggled to Mexico illegally and for money. The conclusion that his
contribution to the illegal activity was more than peripheral is plausible in light
of the record as a whole; thus, it is not clearly erroneous. See United States v.
Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005); United States v. Brown, 54 F.3d
234, 240-41 (5th Cir. 1995).
      The judgment of the district court is AFFIRMED.




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