United States v. Bermudez-Trevino , 283 F. App'x 258 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2008
No. 07-40796
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARTURO BERMUDEZ-TREVINO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-CR-154-1
Before GARWOOD, WIENER, and GARZA, Circuit Judges.
PER CURIAM:*
Arturo Bermudez-Trevino (Bermudez) appeals his August 2007 sentence
following his guilty plea conviction of possession with intent to distribute more
than 100 but less than 1,000 kilograms of marijuana in violation of 18 U.S.C. §§
2, 841(a)(1), (b)(1)(B). Bermudez’s sole contention on appeal is that the district
court clearly erred in denying him a two-level minor role adjustment under
U.S.S.G. § 3B1.2. He contends that the adjustment was warranted because he
was a mere courier who was less culpable than other participants in the offense.
*
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should not be published and is not precedent except under the limited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. 07-40796
Bermudez was the driver and sole occupant of a truck carrying some 819
kilograms of marijuana from Alto Bonito, Texas to Mission, Texas.
The district court accepted the PSR and its calculation of the advisory
guideline range of 97 to 121 months. Bermudez’s counsel requested a two level
downward adjustment in offense level under section 3B1.2, arguing that
Bermudez had only a minor role in the offense. As Bermudez’s counsel points
out on this appeal, a minor role adjustment would have produced a guideline
range of 78 to 97 months. The PSR recommended denial of the requested minor
participant adjustment. The district court considered and rejected it, stating:
“With regards to the role in the offense, as far as I’m concerned this
is someone who could not be possibly considered minimal or minor.
This is somebody who had to take some serious steps with regards
to his involvement in this case, and I would deny that objection,
also.
...
. . . This is 800 kilograms of marijuana. This is 16 – 1800 pounds of
marijuana. This is a lot of marijuana. He had just been placed on
probation two months before for 26 pounds of marijuana. This is not
somebody who is at the bridge or trying to cross here looking for a
job and somebody says, I’m going to throw a hundred dollars at you,
you take this across the border.”
The court ultimately sentenced Bermudez to 97 months, stating “I did
closely consider all of the factors that would apply in 3553(a) and found this to
be the appropriate sentence.”
Whether a defendant is a minor or minimal participant is a factual
determination that is reviewed for clear error. United States v. Villanueva, 408
F.3d 193, 203 & n.9 (5th Cir. 2005). Pursuant to § 3B1.2, a district court may
decrease a defendant’s offense level by two levels if the defendant was a minor
participant. An adjustment for a minor role applies to a defendant “who is less
culpable than most other participants, but whose role could not be described as
minimal.” § 3B1.2, comment. (n.5). The defendant bears the burden of
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No. 07-40796
establishing his entitlement to the minor participant adjustment. United States
v. Deavours, 219 F.3d 400, 404 (5th Cir. 2000).
Bermudez’s courier status alone did not entitle him to a role adjustment
because a defendant may be a courier without being “substantially less culpable
than the average participant.” United States v. Brown, 54 F.3d 234, 241 (5th
Cir. 1995). Thus, the district court did not clearly err in denying Bermudez a
minor role adjustment. See United States v. Atanda, 60 F.3d 196, 199 (5th Cir.
1995); United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir. 1989);
United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).
Accordingly, the judgment of the district court is AFFIRMED.
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