United States v. Delgado , 236 F. App'x 156 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-51478
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSVALDO DELGADO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1552-ALL
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Osvaldo Delgado appeals his sentence following his guilty-plea conviction
for transporting aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i).
He argues that the district court clearly erred in denying him a minor role
adjustment to his offense level under U.S.S.G. § 3B1.2.
Following United States v. Booker, 543 U.S. 220 (2005), this court
continues to review for clear error claims of erroneous fact-finding with respect
*
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should not be published and is not precedent except under the limited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.
No. 06-51478
to the application of Sentencing Guideline adjustments. United States v.
Villanueva, 408 F.3d 193, 203 n.9 (5th Cir. 2005). Section 3B1.2(b) allows for a
two-level reduction in a defendant’s offense level if the defendant was a “minor
participant in any criminal activity.” § 3B1.2(b).
Delgado contends that he was less culpable than the other participants in
the scheme to smuggle undocumented aliens into the United States.
Notwithstanding that Delgado’s role in transporting the aliens from El Paso,
Texas, to Dallas, Texas, may have been only part of a larger smuggling scheme,
Delgado was charged with transporting aliens for private financial gain, and the
record demonstrates that Delgado agreed to personally transport people that he
knew were undocumented aliens more than 600 miles across Texas for personal
financial gain. Delgado’s participation was central to the transportation of the
undocumented aliens and clearly “coextensive with the conduct for which he was
held accountable.” United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001)
(citing United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir. 1997)).
Because Delgado’s role in the offense was not minor, the district court did
not clearly err in denying him a role adjustment under § 3B1.2. See United
States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995). The conviction and sentence
are AFFIRMED.
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