United States v. Jose Bazan ( 2020 )

Case: 18-40724 Document: 00515486153 Page: 1 Date Filed: 07/13/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-40724 July 13, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ARMANDO BAZAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
Jose Armando Bazan pleaded guilty to possession with intent to
distribute cocaine. On appeal, he argued that he should have received a
mitigating role adjustment pursuant to U.S.S.G. § 3B1.2. Because he failed to
seek a mitigating role adjustment in the district court, this court concluded
that he could not demonstrate plain error because the issue was a question of
fact that was capable of resolution by the district court upon proper objection.
Thereafter, the Supreme Court concluded that “there is no legal basis for the
Fifth Circuit’s practice of declining to review certain unpreserved factual
arguments for plain error.” Davis v. United States, 140 S. Ct. 1060, 1061
Case: 18-40724 Document: 00515486153 Page: 2 Date Filed: 07/13/2020
No. 18-40724
Summary Calendar
(2020). Accordingly, the Supreme Court granted Bazan’s petition for certiorari,
vacated this court’s judgment, and remanded the case for further consideration
in light of Davis. Bazan v. United States, 140 S. Ct. 2016 (2020) (mem.).
As Bazan did not object to the denial of a mitigating role adjustment in
the district court, review is for plain error. See United States v. Martinez-
Larraga, 517 F.3d 258, 272 (5th Cir. 2008). Bazan fails to cite any evidence
showing that the district court would have granted the adjustment for his role
in the offense. See United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th
Cir. 2016). Though Bazan argues that he was merely a courier, the issue turns
on his culpability relative to the other participants in the offense. See id. at
209.
Bazan exercised decision-making authority by recruiting his brother and
coordinating actions with Janet Villareal. See § 3B1.2, comment. (n.3(C)(iii));
see also § 3B1.1, comment. (n.4). Moreover, the plan between Bazan, his
brother, and Villareal suggests that Bazan had some discretion regarding his
role in the offense. See § 3B1.2, comment. (n.3(C)(iv)). Though Bazan contends
that there was no evidence that he had a proprietary interest, there is likewise
no evidence showing that he was paid a fee to transport the cocaine, and Bazan
had the burden to demonstrate that the adjustment was warranted. See
Torres-Hernandez, 843 F.3d at 207; see also § 3B1.2, comment. (n.3(C)(v)).
Bazan has failed to show error, plain or otherwise. The judgment of the district
court is AFFIRMED.
2