United States v. De-La-Cruz-Gutierrez , 881 F.3d 221 ( 2018 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 16-2350
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    ADOLFO DE LA CRUZ-GUTIÉRREZ,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
    Before
    Howard, Chief Judge,
    Torruella and Kayatta, Circuit Judges.
    George F. Gormley, Stephen Super and George F. Gormley, P.C.,
    on brief for appellant.
    Francisco A. Besosa-Martínez, Assistant United States
    Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and
    Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
    Appellate Division, on brief for appellee.
    January 31, 2018
    TORRUELLA, Circuit Judge.             Defendant-appellant Adolfo
    De la Cruz-Gutiérrez ("De la Cruz") pled guilty to possession with
    intent       to    distribute     five     kilograms     or    more   of    cocaine,    in
    violation of 
    21 U.S.C. §§ 841
    (a)(1) and (b)(1)(A); and importation
    of five kilograms or more of cocaine into the United States, in
    violation of 
    21 U.S.C. §§ 952
    (a), 960(a)(1) and (b)(1)(B).                             The
    district court sentenced him to a 120-month term of imprisonment,
    in     the    middle      of   his    United      States       Sentencing    Guidelines
    ("U.S.S.G." or "Guidelines") imprisonment range.                       De la Cruz now
    appeals, challenging the district court's denial of a mitigating
    role    adjustment        under     U.S.S.G.     §    3B1.2,    and   the   substantive
    reasonableness of his sentence.                  After careful consideration, we
    affirm.
    I.    Factual Background
    Because De la Cruz pled guilty, our discussion of the
    relevant          facts   draws     from   the       change-of-plea    colloquy,       the
    unchallenged portions of the Presentence Investigation Report
    ("PSR"), and the transcript of the sentencing hearing.                       See United
    States v. Fernández-Santos, 
    856 F.3d 10
    , 14 n.1 (1st Cir. 2017).
    On January 7, 2016, Border Patrol agents responded to
    information they had received regarding drug-smuggling activity at
    a beach in Isabela, Puerto Rico.                 There, the agents discovered an
    abandoned twenty-two-foot fiberglass vessel with a single sixty
    -2-
    horsepower outboard motor.       In close proximity to the vessel, the
    agents observed De la Cruz, a Venezuelan national and resident of
    the Dominican Republic, who had worked for several years as a
    fisherman, attempting to flee the scene.          The agents detained De
    la Cruz and searched the backpack he was carrying, which revealed
    two cell phones, a global positioning system ("GPS"), and cocaine.
    Agents from several law enforcement agencies searched the beach
    and found five bales of cocaine hidden in the nearby brush,
    weighing 153.78 kilograms in total.             Its estimated value was
    $10,848,859.74.    During    a    post-arrest    interview,   De   la   Cruz
    admitted that he traveled from the Dominican Republic to Puerto
    Rico to smuggle the cocaine.      According to De la Cruz, he traveled
    with two other individuals (one of them known as "Tin"),1 all three
    individuals took turns navigating the vessel,2 and he was offered
    $20,000 for his role in the trip.
    1  The two individuals allegedly traveling with De la Cruz were
    not apprehended.   De la Cruz told law enforcement that both of
    them drowned during the trip from the Dominican Republic to Puerto
    Rico. The record is devoid of any evidence corroborating De la
    Cruz's statement.
    2  In this interview, De la Cruz stated that he had been hired as
    a captain. When faced with the possibility of receiving a two-
    level sentencing enhancement for his role as a captain under
    U.S.S.G. § 2D1.1(b)(3)(C), De la Cruz recanted his prior statement
    and, instead, claimed that Tin was the captain, and that he had
    recruited De la Cruz "to engage in any task required of him."
    -3-
    De    la   Cruz   was    indicted     on    January    13,   2016,   for
    possession with intent to distribute five kilograms or more of
    cocaine, in violation of 
    21 U.S.C. §§ 841
    (a)(1) and (b)(1)(A); and
    importation of five kilograms or more of cocaine into the United
    States,    in    violation    of    
    21 U.S.C. §§ 952
    (a),    960(a)(1)    and
    (b)(1)(B). De la Cruz pled guilty to both counts of the indictment.
    After a series of procedural events -- including the issuance of
    a PSR, De la Cruz's objections to some aspects of the PSR, the
    issuance of an amended PSR and an addendum to the PSR, as well as
    De la Cruz's filing a sentencing memorandum3 -- De la Cruz filed a
    motion requesting that the district court grant him a three-level
    reduction for his role in the offense.4                In his motion, De la Cruz
    alleged that he was entitled to a three-level reduction under
    U.S.S.G. § 3B1.2 -- as opposed to the two-level reduction the
    probation officer had proposed in the amended PSR -- because his
    participation in the criminal activity was less than that of a
    minor     participant    (although       not    minimal).          The   government
    responded that it would defer to the court's discretion because,
    "based on the totality of the evidence collected at the scene and
    3  Because, in general, these issues are not relevant to the
    present appeal, we do not delve into them.
    4  De la Cruz's motion included another issue not relevant to this
    appeal.
    -4-
    the post arrest statements of [De la Cruz, it did] not have enough
    information to determine if [De la Cruz] was a minor participant
    in the smuggling venture."        On October 6, 2016, the district court
    denied De la Cruz's motion as to the mitigating role adjustment.
    The court determined that De la Cruz was not even eligible for the
    two-level minor role reduction that the probation officer had
    recommended.         In essence, the district court concluded that the
    record before it contained "no factual basis to justify classifying
    [De la Cruz] as a minor participant versus the participation of
    the   other    two    persons   who   he   claims   accompanied   him   in   the
    smuggling venture."        To the contrary, according to the court, the
    record reflected that all three participants, including De la Cruz,
    were no "ordinary mules but, rather, persons of trust within the
    organization."
    The sentencing hearing took place on October 13, 2016.
    There, De la Cruz renewed his request for a mitigating role
    adjustment.      After the district court stated that it would not
    award the adjustment, De la Cruz argued for a downwardly variant
    sentence "to what would have been [his] sentence had the Court
    granted the role adjustment."          The district court then calculated
    De la Cruz's Guidelines sentencing range ("GSR").             It determined
    that De la Cruz's base offense level was thirty-six under U.S.S.G.
    § 2D1.1(c)(2) because the offense involved "the possession and
    -5-
    importation of at least 150 kilograms but less than 450 kilograms
    of cocaine."    The court granted a two-level reduction because De
    la Cruz complied with the provisions in 
    18 U.S.C. §§ 3553
    (f)(1)-(5)
    and U.S.S.G. §§ 5C1.2(a)(1)-(5) (the safety valve).        Finally, it
    granted a three-level reduction pursuant to U.S.S.G. §§ 3E1.1(a)
    and (b) due to De la Cruz's acceptance of responsibility, resulting
    in a total offense level of thirty-one.       This, in conjunction with
    De la Cruz's criminal history category of I, yielded a GSR of 108
    to 135 months of imprisonment.
    The court then addressed De la Cruz's request for a
    variant sentence.     In so doing, it considered the 
    18 U.S.C. § 3553
    (a) sentencing factors, emphasizing De la Cruz's personal
    history and characteristics, including his status as a first
    offender, and the nature of the offense.         Ultimately, the court
    denied De la Cruz's request for a downwardly variant sentence and
    sentenced De la Cruz to 120 months of imprisonment, in the middle
    of the GSR.    This timely appeal followed.
    II.   Discussion
    A. Procedural Reasonableness of De la Cruz's Sentence
    We review preserved challenges to the reasonableness of
    a sentence "under a deferential abuse-of-discretion standard."
    United States v. Battle, 
    637 F.3d 44
    , 50 (1st Cir. 2011) (quoting
    Gall v. United States, 
    552 U.S. 38
    , 41 (2007)).             Under this
    -6-
    deferential standard, "we first determine whether the sentence
    imposed is procedurally reasonable and then determine whether it
    is substantively reasonable."    United States v. Coleman, 
    854 F.3d 81
    , 84 (1st Cir. 2017) (quoting United States v. Clogston, 
    662 F.3d 588
    , 590 (1st Cir. 2011)).      Procedural errors include: "failing
    to calculate (or improperly calculating) the Guidelines range,
    treating the Guidelines as mandatory, failing to consider the
    § 3553(a) factors, selecting a sentence based on clearly erroneous
    facts, or failing to adequately explain the chosen sentence --
    including an explanation for any deviation from the Guidelines
    range."   United States v. Reyes-Rivera, 
    812 F.3d 79
    , 86 (1st Cir.
    2016) (quoting United States v. Martin, 
    520 F.3d 87
    , 92 (1st Cir.
    2008)).   In the course of determining whether the district court
    committed procedural error, "we afford de novo review to the
    sentencing     court's   interpretation   and   application   of   the
    sentencing guidelines, assay the court's factfinding for clear
    error, and evaluate its judgment calls for abuse of discretion."
    United States v. González-Rodríguez, 
    859 F.3d 134
    , 137 (1st Cir.
    2017) (quoting United States v. Ruiz-Huertas, 
    792 F.3d 223
    , 226
    (1st Cir. 2015)).
    De la Cruz argues that, by failing to grant him a minor
    role reduction, the district court improperly calculated his GSR
    and, thus, his sentence is procedurally unreasonable.     De la Cruz
    -7-
    now presses for a two-level minor role reduction, instead of the
    three-level reduction he requested below.
    The   Guidelines   allow   a   court   to   award   a   two-level
    reduction to a defendant who was a minor participant in the
    criminal activity in question.5        U.S.S.G. § 3B1.2.        In the past,
    we have required a defendant seeking a minor role reduction to
    prove by a preponderance of the evidence that he was "both less
    culpable than his cohorts in the particular criminal endeavor and
    less culpable than the majority of those within the universe of
    persons   participating   in   similar     crimes."     United      States   v.
    Trinidad-Acosta, 
    773 F.3d 298
    , 315-16 (1st Cir. 2014) (quoting
    United States v. Santos, 
    357 F.3d 136
    , 142 (1st Cir. 2004)).
    Effective November 1, 2015, Amendment 794 to the Guidelines adopted
    a more lenient approach, then-followed by the Seventh and Ninth
    Circuits.   Per that amendment, "when determining mitigating role,
    the defendant is to be compared with other participants 'in the
    criminal activity'" and not with the typical offender.               U.S.S.G.
    App. C Supp., Amend. 794 (effective Nov. 1, 2015).               Although De
    5  The Guidelines also provide for a four-level reduction to a
    defendant whose participation in the criminal activity was
    minimal, and a three-level reduction if the defendant's
    participation was between minor and minimal.      See U.S.S.G.
    § 3B1.2.
    -8-
    la Cruz embraced the two-part test in his opening brief, his
    challenge fails even under Amendment 794's more lenient standard.
    Because determining one's role in an offense is a fact-
    specific inquiry, "we rarely reverse a district court's decision
    regarding       whether     to     apply       a    minor     role       adjustment."
    United States v. Bravo, 
    489 F.3d 1
    , 11 (1st Cir. 2007) (citing
    United States v. Tom, 
    330 F.3d 83
    , 95 (1st Cir. 2003)); see also
    United    States    v.    Pérez,   
    819 F.3d 541
    ,    546   (1st    Cir.   2016)
    ("[B]attles over a defendant's status . . . will almost always be
    won or lost in the district court." (second alteration in original)
    (quoting United States v. Graciani, 
    61 F.3d 70
    , 75 (1st Cir.
    1995))). A defendant will "only prevail on appeal by demonstrating
    that the district court's determination as to his role in the
    offense   was    clearly    erroneous."            United    States   v.   González-
    Soberal, 
    109 F.3d 64
    , 74 (1st Cir. 1997) (quoting United States v.
    López-Gil, 
    965 F.2d 1124
    , 1131 (1st Cir. 1992)).                  De la Cruz cannot
    meet that burden.
    De la Cruz alleges that the district court's denial of
    a   mitigating     role    adjustment      was     clearly    erroneous     because,
    although "[h]e played a role," it was "not one that made him any
    more valuable or essential -- or culpable -- than any other
    crewmember."       De la Cruz further argues that the district court's
    decision not to impose a sentencing enhancement for "captain" under
    -9-
    U.S.S.G. § 2D1.1(b)(3)(C) "was an acknowledgement that even if
    [he] operated the boat[,] he was clearly not in charge."          Because
    he was not in charge, his argument goes, someone else (he claims
    it was Tin) was more culpable than him and thus it was clearly
    erroneous for the district court to deny him a mitigating role
    adjustment.
    De la Cruz's argument fails for several reasons.         First,
    De la Cruz seems to believe that he is entitled to a minor role
    reduction as long as he was not a more culpable participant.        Yet,
    this is simply not the standard.          To be entitled to the role
    reduction, De la Cruz had to prove that he was less culpable than
    his cohorts.    Merely not being more culpable than his cohorts
    falls short of meeting the standard.        See Bravo, 
    489 F.3d at 11
    (affirming    denial   of   role   reduction   where,   despite     being
    crewmembers and not the captain, defendants failed to demonstrate
    that any of them were less culpable than the other crewmembers).
    De la Cruz's concession before the district court that "[a] third
    individual also performed a role substantially similar to [De la
    Cruz]" makes evident that he did not meet his burden and thus
    defeats his claim.     Second, assuming as true that someone else,
    and not De la Cruz, was the captain of the vessel, it does not
    necessarily follow that De la Cruz and the captain were not "equal
    partners in the criminal activity."       See Pérez, 819 F.3d at 545-46
    -10-
    (holding that the fact that Pérez's co-defendant "was deemed the
    'captain' of the craft does not undermine the sentencing court's
    finding that they were equal partners in the criminal activity"
    (citing Bravo, 
    489 F.3d at 11
    )).       Third, the fact that someone
    else might have been more culpable than De la Cruz does not
    necessarily mean that De la Cruz's participation was minor.     See
    United States v. García-Ortiz, 
    657 F.3d 25
    , 29-30 (1st Cir. 2011)
    ("The fact that some other accomplice may be more culpable than
    the defendant does not necessarily mean that the defendant's role
    in the offense is minor."); see also United States v. Meléndez-
    Rivera, 
    782 F.3d 26
    , 29 (1st Cir. 2015) (noting that "a defendant
    need not be the key figure in a conspiracy in order to be denied
    [a role reduction]").
    Likewise, De la Cruz's comparison of his role in the
    criminal activity to that of a "'mule'-- who does little more than
    knowingly transport drugs during one leg of the trip," leads him
    nowhere.      The   district   court     expressly   rejected   this
    characterization as an ordinary mule and De la Cruz has failed to
    show that this determination was clearly erroneous.    Based on the
    record before it -- including De la Cruz's participation in a
    multimillion dollar smuggling venture involving bringing more than
    $10,000,000-worth of cocaine aboard a small vessel with a single
    outboard motor for a hazardous voyage at sea -- the district court
    -11-
    reasonably inferred that De la Cruz was no "Johnny-come-late[ly]"
    or an ordinary mule, but rather that he, as well as his cohorts,
    were "persons of trust within the organization."            Although De la
    Cruz does not agree with the inferences the district court drew,
    and provides alternate explanations, where, as here, the record
    supports at least two permissible inferences, "the sentencing
    court's choice among supportable alternatives cannot be clearly
    erroneous."    Pérez, 819 F.3d at 546 (finding no clear error in the
    district court's denial of a mitigating role adjustment where the
    district court "mentioned the large quantity of drugs, the trust
    that the drug owners obviously placed in the appellant, and the
    appellant's expertise in 'how to handle the boat'"); United States
    v. Vargas, 
    560 F.3d 45
    , 51 (1st Cir. 2009) (noting that the "large
    quantity of drugs hauled by the appellant . . . was a relevant
    datum in assessing [the defendant's] role in the conspiracy").
    Furthermore,   De   la   Cruz's   attempt   to   minimize    his   role   is
    undermined by his concession that "[a]ll three participants took
    turns 'navigating'" the vessel, that they all "look[ed] at the
    GPS" and partook in steering the vessel, and "that one or both of
    the other participants took a turn steering" the vessel when De la
    Cruz became tired.
    In any event, even if De la Cruz had been an ordinary
    mule, our precedent is clear that merely being a courier does not
    -12-
    automatically entitle a defendant to a mitigating role adjustment.
    See   Vargas,   
    560 F.3d at 51
        (noting   that    couriers   are    not
    automatically    entitled    to   mitigating      role    adjustments,     that
    "[s]ome couriers are more central to the plot than others," and
    that "[a] defendant who participates in only one phase of a
    conspiracy may nonetheless be found to play a non-minor role");
    United States v. De La Cruz, 
    249 F. App'x 833
    , 835 (1st Cir. 2007)
    (upholding denial of minor role reduction where defendant's role
    "was limited 'to aid[ing] in the transportation of drugs from one
    point to the other'" (alteration in original)); González-Soberal,
    
    109 F.3d at 73
     (noting that couriers are not automatically entitled
    to a reduction).
    In light of the above, we conclude that the district
    court's denial of a mitigating role adjustment was not clearly
    erroneous.
    B. Substantive Reasonableness of De la Cruz's Sentence
    In his other claim of error, De la Cruz challenges the
    substantive reasonableness of his sentence.              Although De la Cruz
    did not preserve this claim below, because the standard of review
    for unpreserved challenges to the substantive reasonableness of a
    sentence is murky, we assume -- favorably to him -- that our review
    is for abuse of discretion.       See Ruiz-Huertas, 792 F.3d at 228.
    -13-
    A sentence is substantively reasonable if it rests on "a
    plausible sentencing rationale and a defensible result."                  Martin,
    
    520 F.3d at 96
    .      Successfully    challenging     the     substantive
    reasonableness of a sentence is a heavy burden that "grows even
    heavier where, as here, the sentence falls within a properly
    calculated GSR."          United States v. Cortés-Medina, 
    819 F.3d 566
    ,
    572 (1st Cir. 2016) (citing Clogston, 
    662 F.3d at 592-93
    ); see also
    United States v. Llanos-Falero, 
    847 F.3d 29
    , 36 (1st Cir. 2017)
    (noting      that    within-the-Guidelines       sentences     "deserve[]      'a
    presumption of reasonableness'" (quoting Cortés-Medina, 819 F.3d
    at 572)).     De la Cruz has failed to carry his heavy burden.
    De la Cruz concedes that he was awarded safety valve
    relief under 
    18 U.S.C. § 3553
    (f) and U.S.S.G. § 5C1.2, and that
    the district court appropriately considered this when calculating
    his GSR, resulting in a lower applicable GSR.              He claims, however,
    that by sentencing him to 120 months of imprisonment, which would
    have been his statutory minimum term had he not qualified for
    safety valve relief, the district court "arbitrarily nullified"
    the "benefit" of the safety valve and imposed a substantively
    unreasonable sentence.
    The    safety   valve   provision   of   
    18 U.S.C. § 3553
    (f)
    requires a court to disregard an applicable mandatory sentence if
    the court finds at sentencing that the defendant meets the five
    -14-
    specified criteria, none of which are at issue here.                 See 
    18 U.S.C. §§ 3553
    (f)(1)-(5).           Its purpose is to "'mitigate the harsh effect
    of mandatory minimum sentences' on first-time, low-level offenders
    in drug trafficking schemes."              United States v. Padilla-Colón,
    
    578 F.3d 23
    ,    30     (1st     Cir.   2009)    (quoting      United   States    v.
    Ortiz-Santiago, 
    211 F.3d 146
    , 150 (1st Cir. 2000)).                  In addition,
    the Guidelines provide for a two-level reduction in the offense
    level of a defendant that qualifies for safety valve relief.                      See
    U.S.S.G. §§ 2D1.1 and 5C1.2.
    De     la     Cruz's    contention      that   the     district    court
    disregarded the safety valve relief and imposed the statutory
    minimum sentence is belied by the record.                    Here, the district
    court explicitly found at sentencing that De la Cruz qualified for
    safety valve relief under 
    18 U.S.C. § 3553
    (f), and applied a
    two-level reduction to the GSR calculation, which lowered De la
    Cruz's GSR to 108 to 135 months of imprisonment.6                        The record
    reflects   that        the    district    court    did    not    consider    itself
    constrained by the statutory minimum of 120 months of imprisonment.
    On the contrary, it was aware that it could impose a guideline or
    variant sentence.            In fact, the district court considered De la
    Cruz's request for a variant sentence, but ultimately denied it.
    6  Had the safety valve relief not applied, De la Cruz's GSR would
    have been 135 to 168 months of imprisonment.
    -15-
    The   record    clearly     shows   that,     in   determining      De    la   Cruz's
    sentence,      the   district     court    considered       all   the    §     3553(a)
    sentencing factors and concluded, based on these factors, that a
    mid-range sentence was warranted.               That the mid-range sentence
    turned out to coincide with what would have been the minimum
    sentence       had    the     safety-valve         relief     not       applied     is
    inconsequential in light of the entire record, which lacks a single
    reference (explicit or implicit) indicating that the district
    court considered itself bound by, or that it relied on, a mandatory
    minimum sentence.
    De la Cruz does not dispute that, in determining his
    sentence, the district court considered all the factors listed in
    
    18 U.S.C. § 3553
    (a).         See Clogston, 
    662 F.3d at 592
     (noting that
    where, as here, the district court states that it has considered
    all of the § 3553(a) factors, "[s]uch a statement 'is entitled to
    some weight'" (quoting United States v. Dávila-González, 
    595 F.3d 42
    , 49 (1st Cir. 2010))).           He argues, however, that even though
    the district court emphasized some of the sentencing factors --
    such as the nature and characteristics of the offense and his
    personal history and characteristics -- it "had no intention of
    allowing" De la Cruz's personal characteristics to "impact the
    sentence" and, instead, focused primarily on the nature of the
    offense    (including       the   amount   of   drugs   involved,        worth    over
    -16-
    $10,000,000).   De la Cruz's argument thus goes to how the district
    court weighed the sentencing factors.   And we have repeatedly held
    that "[a] criminal defendant is entitled to a weighing of the
    section 3553(a) factors that are relevant to his case, not to a
    particular result."    Dávila-González, 595 F.3d at 49 (alteration
    omitted) (quoting United States v. Carrasco-De-Jesús, 
    589 F.3d 22
    ,
    29 (1st Cir. 2009)).   Nor is the sentence unreasonable because the
    district court elaborated upon some factors more than others,
    especially where, as here, it imposed a within-the-range sentence.
    See United States v. Murphy-Cordero, 
    715 F.3d 398
    , 402 (1st Cir.
    2013) ("[A] within-the-range sentence typically requires a less
    elaborate explanation than a variant sentence.").
    Lastly, De la Cruz compares his case to United States v.
    Torres-Rivera, 
    661 F. App'x 727
     (1st Cir. 2016), in what seems to
    be an attempt to argue sentencing disparity.     In Torres-Rivera,
    the defendant was also convicted of a drug offense and qualified
    for safety-valve relief.    
    Id. at 728-29
    .   De la Cruz notes that
    Torres-Rivera was also sentenced to 120 months of imprisonment,
    and appears to argue that receiving the same sentence as Torres-
    Rivera was unreasonable because, unlike Torres-Rivera, he "had no
    managerial duties," he "was involved in one incident only," and he
    "had no duties regarding the money [that others] . . . expected to
    glean from selling the cocaine."      But De la Cruz's argument is
    -17-
    inapposite.       De la Cruz is not similarly situated to Torres-
    Rivera, whose GSR was 87 to 108 months of imprisonment, 
    id. at 729
    , lower than De la Cruz's.              By sentencing Torres-Rivera to 120
    months,    
    id.,
           the   district   court      upwardly     departed    from   the
    Guidelines and thus treated Torres-Rivera more harshly in relation
    to his GSR than De la Cruz, who received a mid-range sentence.
    See United States v. Bedini, 
    861 F.3d 10
    , 21 (1st Cir. 2017)
    (noting that "'[a] well-founded claim of disparity' must compare
    'apples . . . to apples'" (alterations in original) (quoting
    United States v. Mateo-Espejo, 
    426 F.3d 508
    , 514 (1st Cir. 2005))).
    Because we find that Appellant's mid-range sentence was
    within    the    universe      of   reasonable     and   defensible       sentences,
    United States v. Torres-Landrúa, 
    783 F.3d 58
    , 69 (1st Cir. 2015),
    we reject De la Cruz's substantive reasonableness challenge.
    III.    Conclusion
    In sum, the district court did not clearly err in denying
    De   la   Cruz    a    minor   role    adjustment,       and   his   sentence     was
    substantively reasonable.            We thus affirm his sentence.
    Affirmed.
    -18-