     Case: 16-11568      Document: 00514328595         Page: 1    Date Filed: 01/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                    No. 16-11568
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                      January 30, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

MICHAEL DAVID STEPICH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-75-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Michael David Stepich appeals from the sentence imposed following his
guilty plea conviction of conspiring to possess with intent to distribute a
controlled substance. He argues on appeal that the district court committed a
legal error by denying him a mitigating role reduction under U.S.S.G. § 3B1.2
without making explicit findings defining the average participant in the
criminal activity and comparing Stepich to that average participant as well as


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11568     Document: 00514328595     Page: 2   Date Filed: 01/30/2018


                                  No. 16-11568

to the other participants in the criminal activity. He also contends that the
district court legally erred by basing its denial of the mitigating role reduction
solely on the nature and extent of his participation in the commission of the
criminal activity.
      We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Villanueva, 408 F.3d 193, 202-03 (5th Cir. 2005). Although the parties
disagree as to whether Stepich has preserved the specific challenge he raises
on appeal, we need not resolve that dispute because the district court’s
judgment may be affirmed whether or not the error was preserved. See United
States v. McLauling, 753 F.3d 557, 559 (5th Cir. 2014).
      Our examination of the record shows that the district court was
presented with, and considered, all of the relevant factors required to
determine whether Stepich qualified for a mitigating role adjustment under
§ 3B1.2. The record also does not support Stepich’s contention that the district
court or probation officer treated any of the factors as determinative.
Accordingly, the district court did not commit any legal error in making the
§ 3B1.2 determination. Moreover, Stepich does not specifically challenge on
appeal the district court’s factual determination underlying its denial of a
mitigating role adjustment. See United States v. Scroggins, 599 F.3d 433, 447
(5th Cir. 2010).
      The district court’s judgment is AFFIRMED.




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