United States v. Maricela Tarin ( 2011 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 17, 2011
No. 10-50369
c/w No. 10-50371 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARICELA TARIN, also known as Marisela Tarin,
Defendant-Appellant
Cons. w/ No. 10-50371
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARICELA TARIN,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1879-1
USDC No. 3:09-CR-3402-1
No. 10-50369
c/w No. 10-50371
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Maricela Tarin pleaded guilty to importing and possessing with intent to
distribute marijuana. The district court sentenced Tarin to 24 months of
imprisonment for each count, to be served concurrently, and to five years of
supervised release for each count, to be served concurrently. Tarin appeals her
sentence, arguing that she was entitled to a two-level reduction in her offense
level under U.S.S.G § 3B1.2(b) as a minor participant in the drug-trafficking
operation.
The district court’s refusal to grant a minor participant adjustment is a
factual determination that is reviewed for clear error. See United States v.
Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). The defendant bears the burden
of proving that she is entitled to this downward adjustment. United States v.
Garcia, 242 F.3d 593, 597 (5th Cir. 2001).
Tarin has not shown that the district court clearly erred in concluding that
she failed to establish that she played only a minor role in the offense. See
Burton v. United States, 237 F.3d 490, 503 (5th Cir. 2000). Tarin’s sentence was
based entirely on the conduct that she was directly involved in and the quantity
of drugs that she personally transported; thus, a minor role adjustment was not
required even if she played only a small part in a larger enterprise. See Garcia,
242 F.3d at 598-99(“Section 3B1.2 does not contemplate that the participation
level is to be evaluated in reference to the entire criminal enterprise of which
Defendant is a part.”); United States v. Atanda, 60 F.3d 196, 199 (5th Cir.
1995)(“We . . . conclude that when a sentence is based on an activity in which a
defendant was actually involved, §3B1.2 does not require a reduction in the base
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50369
c/w No. 10-50371
offense level even though the defendant’s activity in a larger conspiracy may
have been minor . . . .”). Moreover, Tarin’s argument that she should have
received the adjustment because she was merely a drug courier with little
knowledge of the smuggling operation is unavailing. A courier is often
“indispensable” to a drug-smuggling operation, United States v. Buenrostro, 868
F.2d 135, 138 (5th Cir. 1989), and thus is not automatically entitled to a minor
role adjustment. Id.(“Without somebody to take the drugs across the border, the
drugs will never reach their illicit market.”). Tarin’s role in transporting 32.01
kilograms of drugs across the border was more than peripheral; therefore, the
district court did not clearly err in finding that she was not a minor participant.
See Villanueva, 408 F.3d at 203-04.
At the time Tarin committed the instant offenses, she was on supervised
release for a 2006 drug related conviction. Her commission of these offenses
resulted in a revocation of her supervised release. Although Tarin has appealed
the revocation of her supervised release, she has failed to raise any arguments
in support of that appeal. Because issues not briefed on appeal are waived, see
United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000), Tarin has waived
any argument concerning the district court’s revocation of her supervised
release.
The judgments of the district court are AFFIRMED.
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