                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3356
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  David Cartagena

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                              Submitted: May 8, 2017
                               Filed: May 18, 2017
                                  ____________

Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
                            ____________

SHEPHERD, Circuit Judge.

       David Cartagena pled guilty to one count of conspiracy to possess with intent
to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846. The district court1 sentenced him to 156 months imprisonment.
He argues on appeal that the district court failed to consider the Sentencing Guideline
factors for minimal-role adjustment to the offense level, erred in denying a minimal-
role adjustment, and imposed an unreasonable sentence. We affirm.

      In 2012, Angel Rivera began obtaining heroin for resell from sources in
Mexico. In January 2015, Angel Rivera paid Cartagena and Frankie Rivera $10,000
plus expenses to travel by bus from Reading, Pennsylvania to Los Angeles with over
$250,0002 in cash. Angel Rivera instructed them to check into a hotel in Los
Angeles, where they were contacted by Elisandra Varela and provided bundles of
heroin in exchange for the cash. At her instruction, Cartagena and Frankie Rivera
removed the cash from their own luggage and replaced it with the bundles of heroin.
Cartagena and Frankie Rivera were then instructed by Angel Rivera to return to
Reading by bus with the heroin in tow.

       During the return trip Cartagena and Frankie Rivera encountered Kansas City,
Missouri Police Department drug interdiction squad officers at the Greyhound Bus
Station in Kansas City. The officers’ canine alerted on luggage later determined to
belong to Cartagena. When questioned, Cartagena explained that he was traveling
with his long-time friend Frankie Rivera. Cartagena denied officers permission to
search his luggage. He was taken into custody and a search warrant for the luggage
was obtained and executed. In the luggage officers found three bundles of heroin
later determined to weigh 3,989 grams.




      1
      The Honorable Roseann Ketchmark, United States District Judge for the
Western District of Missouri.
      2
       When interviewed by law enforcement, Angel Rivera stated that Cartagena
and Frankie Rivera actually transported $282,000.

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       While officers were speaking with Cartagena, other officers spoke with Frankie
Rivera, who told them that he and Cartagena had just met. Frankie Rivera consented
to the officers’ search of his luggage in which officers found three bundles of heroin
weighing 2,991 grams in a hidden compartment. Frankie Rivera agreed to cooperate
with law enforcement and the ensuing investigation led to the arrest and indictment
of Angel Rivera and Varela.

      Prior to sentencing, Cartagena requested a four-level reduction in his Guideline
offense level as a minimal participant in the criminal activity pursuant to USSG
§ 3B1.2(a). The presentence report did not recommend the reduction, and Cartagena
objected. The district court—after considering the description of the offense conduct
contained in the presentence report, Cartagena’s objections to the presentence report,
the probation officer’s response to Cartagena’s objections, and the argument of
counsel—denied the minimal-participant reduction.3

       Cartagena now contends that the district court committed procedural error in
failing to consider the advisory factors set forth in the commentary to USSG § 3B1.2.
The commentary provides:

      The determination whether to apply subsection (a) or subsection (b), or
      an intermediate adjustment, is based on the totality of the circumstances
      and involves a determination that is heavily dependent upon the facts of
      the particular case.

      In determining whether to apply subsection (a) or (b), or an intermediate
      adjustment, the court should consider the following non-exhaustive list
      of factors:




      3
       Prior to sentencing, Cartagena also filed a Sentencing Memorandum with
exhibits which included law enforcement investigative reports.

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      (i) the degree to which the defendant understood the scope and structure
      of the criminal activity;

      (ii) the degree to which the defendant participated in planning or
      organizing the criminal activity;

      (iii) the degree to which the defendant exercised decision-making
      authority or influenced the exercise of decision-making authority;

      (iv) the nature and extent of the defendant’s participation in the
      commission of the criminal activity, including the acts the defendant
      performed and the responsibility and discretion the defendant had in
      performing those acts;

      (v) the degree to which the defendant stood to benefit from the criminal
      activity.

      For example, a defendant who does not have a proprietary interest in the
      criminal activity and who is simply being paid to perform certain tasks
      should be considered for an adjustment under this guideline.

      The fact that a defendant performs an essential or indispensable role in
      the criminal activity is not determinative. Such a defendant may receive
      an adjustment under this guideline if he or she is substantially less
      culpable than the average participant in the criminal activity.

USSG § 3B1.2, comment. (n.3(C)).

       Cartagena contends the district court procedurally erred by failing to consider
these advisory factors and by making no findings of fact in connection with its
minimal role adjustment decision. See United States v. Barrientos, 670 F.3d 870, 873
(8th Cir. 2012) (district court commits procedural error by failing to consider factors
listed in commentary to the guidelines). However, Cartagena did not object to this
alleged procedural error and, accordingly, we review the issue for plain error. United
States v. Burnette, 518 F.3d 942, 946 (8th Cir. 2008) (“Procedural sentencing errors

                                         -4-
are forfeited, and therefore may be reviewed only for plain error, if the defendant fails
to object in the district court.”).

      Under plain error review, the defendant must show: (1) an error; (2) that
      is plain; and (3) that affects substantial rights. If these conditions are
      met, an appellate court may exercise its discretion to correct a forfeited
      error only if it “seriously affects the fairness, integrity, or public
      reputation of judicial proceedings.”

United States v. Vaughn, 519 F.3d 802, 804 (8th Cir. 2008) (citations omitted); see
also Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.”).

       Indeed, at sentencing the district court did not expressly refer to the factors set
forth in the commentary to USSG § 3B1.2. However, assuming the district court
procedurally erred by failing to consider these factors, for the error to affect
substantial rights Cartagena “must show a ‘reasonable probability,’ based on the
appellate record as a whole, that but for the error he would have received a more
favorable sentence.” United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en
banc). From our review of the record as a whole, as more fully discussed below,
Cartagena has not shown that he would have received a minimal role adjustment,
much less that he would have received a lesser sentence, had the district court not
procedurally erred.

        The minimal-participant adjustment “applies to a defendant . . . who plays a
minimal role in the criminal activity. It is intended to cover defendants who are
plainly among the least culpable of those involved in the conduct of a group.” USSG
§ 3B1.2, comment. n.4. “Whether a defendant played a minor role is a question of
fact reviewed for clear error. The burden of proof rests with the defendant to prove
that he played a minor role.” United States v. Mitchell, 613 F.3d 862, 870 (8th Cir.
2010) (citation omitted).

                                           -5-
       Cartagena argues that his role in the criminal enterprise was merely that of a
one-time courier without a proprietary interest in the heroin that he and his
companion transported. He points out that the commentary to USSG § 3B1.2 also
instructs: “[A] defendant who is convicted of a drug trafficking offense, whose
participation in that offense was limited to transporting or storing drugs and who is
accountable under § 1B1.3 only for the quantity of drugs the defendant personally
transported or stored may receive an adjustment under this guideline.” USSG §
3B1.2, comment. n.3(A). He also argues that, “when comparing Mr. Cartagena’s role
to that of the other participants, his culpability is significantly less.”

       The relevant commentary to USSG § 3B1.2 speaks in terms of eligibility for
the minimal-role adjustment. Cartagena’s eligibility for a minimal-role adjustment
was not in dispute at sentencing and was implicitly acknowledged by the district court
as it determined that under these circumstances the minimal-role adjustment should
be denied. Our cases have made clear, however, that “merely showing the defendant
was less culpable than other participants is not enough to entitle the defendant to the
adjustment if the defendant was ‘deeply involved’ in the offense.” United States v.
Bush, 352 F.3d 1177, 1182 (8th Cir. 2003).

       Cartagena has a history of drug trafficking offenses. He and Frankie Rivera
made a deal with Angel Rivera, in exchange for $10,000, not only to carry over a
quarter of a million dollars cross-country but also to exchange that cash for almost
seven kilograms of heroin, which they then transported back across the country.
Significantly, Cartagena himself was in possession of 3,989 grams of heroin, and the
entire quantity of the drugs was attributed to Cartagena for sentencing purposes.
Cartagena and Frankie Rivera “were active, necessary, and well-compensated
members of th[e] conspiracy. Their roles as couriers do not necessarily entitle them
to the minor role adjustment. Transportation is an important component of an illegal
drug distribution organization.” United States v. Adamson, 608 F.3d 1049, 1054 (8th



                                         -6-
Cir. 2010) (citation omitted). Thus, the district court did not plainly err in denying
a minimal-role reduction.

       Finally, Cartagena submits that considering his role in the offense and his
criminal record, his sentence of 156 months—36 months above the mandatory
minimum sentence—is substantively unreasonable as “greater than necessary to meet
the statutory factors for sentencing.” We review the substantive reasonableness of
a sentence for abuse of discretion. United States v. Mees, 640 F.3d 849, 856 (8th Cir.
2011). “[A]n abuse of discretion occurs where the sentencing court fails to consider
a relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or considers only the appropriate factors but
commits a clear error of judgment in weighing those factors.” United States v.
Bryant, 606 F.3d 912, 921 (8th Cir. 2010) (internal quotation marks omitted).

       In this case, the district court adequately considered the 18 U.S.C. § 3553(a)
factors. The court expressly noted Cartagena’s criminal history and sentencing
consideration that has been afforded to him in the past; the increasing quantities of
drugs that have been attributed to him; his history of probation violations; his history
and characteristics, including family history; the nature and circumstances of the
subject offense, and; the need to protect the public from future crimes. See 18 U.S.C.
§ 3553(a). Further, the court imposed a within-Guidelines sentence. United States
v. Sandoval-Sianuqui, 632 F.3d 438, 444 (8th Cir. 2011) (sentences within the
advisory Guideline range are presumed reasonable). Cartagena has not demonstrated
that the district court abused its discretion in not giving more weight to his relative
role in the offense. We therefore conclude that the sentence was not substantively
unreasonable.

      We affirm.
                        ______________________________



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