     Case: 16-51016      Document: 00514259208         Page: 1    Date Filed: 12/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 16-51016                                     FILED
                                  Summary Calendar                           December 4, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DANIEL RYAN NORTON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:16-CR-31-2


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       Daniel Ryan Norton pleaded guilty to conspiring with two other people
to possess with intent to distribute about 18 pounds of methamphetamine. He
was sentenced to 151 months in prison, a sentence at the bottom of the advisory
guideline range based on that drug amount. He contends that the district court
committed clear error by refusing his request for an offense level reduction




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51016    Document: 00514259208        Page: 2   Date Filed: 12/04/2017


                                    No. 16-51016

based on being a minor or minimal participant in the offense under U.S.S.G.
§ 3B1.2.
      The denial of a mitigating role adjustment is reviewed for clear error and
“will not be deemed clearly erroneous if plausible in light of the record as a
whole.” United States v. Bello-Sanchez, 872 F.3d 260, 263 (5th Cir. 2017)
(internal quotation marks and citation omitted). Norton has the burden of
demonstrating entitlement to a mitigating role adjustment. See United States
v. Perez-Solis, 709 F.3d 453, 471 n.57 (5th Cir. 2013).           No reduction is
warranted unless Norton “was peripheral to the advancement of the criminal
activity.” Id. at 471 (internal quotation marks and citation omitted). The
decision whether to apply § 3B1.2 is “based on the totality of the circumstances
and involves a determination that is heavily dependent upon the facts of the
particular case.” § 3B1.2, comment. (n.3(C)).
      The record includes testimony that one of the co-conspirators considered
Norton her “partner” and that she and Norton were going to split the purchase
of six pounds of methamphetamine with more being provided on credit. Norton
was carrying an amount of cash that substantially coincided with the cost of
the three pounds that would be his share. Moreover, the court implicitly found
that Norton’s contrary unsupported assertions were not credible in light of
other evidence. See State v. Kleinert, 855 F.3d 305, 318-19 (5th Cir. 2017)
(noting that showing clear error is harder if the credibility of witnesses is a
factor), petition for cert. filed (Aug. 23, 2017) (No. 17-299). Norton’s conduct
was fully congruent with the charged offense and was not peripheral to it.
Cf. Perez-Solis, 709 F.3d at 471.
      Norton fails to show that the district court committed clear error by
finding that he was an average participant and by declining to award a




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    Case: 16-51016   Document: 00514259208    Page: 3   Date Filed: 12/04/2017


                               No. 16-51016

mitigating role reduction. See Bello-Sanchez, 872 F.3d at 263. The judgment
is AFFIRMED.




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