UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4354
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NESTOR GUERRA-TELON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:13-cr-00631-HMH-5)
Submitted: February 12, 2015 Decided: February 25, 2015
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jerome Lee, TAYLOR LEE & ASSOCIATES, LLC, Norcross, Georgia, for
Appellant. William N. Nettles, United States Attorney, Andrew
B. Moorman, Sr., Assistant United States Attorney, Greenville,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Nestor Guerra-Telon of conspiracy to
possess with intent to distribute and to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (2012). The
district court imposed a sentence of 140 months. On appeal,
Guerra-Telon challenges his sentence. We affirm.
First, Guerra-Telon argues that the district court erred
when it used a drug quantity of 3.5 to five kilograms of cocaine
to set his base offense level at thirty. See U.S. Sentencing
Guidelines Manual § 2D1.1(c)(5) (drug quantity table) (2013). A
district court’s drug quantity determination is a factual
finding reviewed for clear error. United States v. Mann, 709
F.3d 301, 304 (4th Cir. 2013).
“For sentencing purposes, the government must prove the
drug quantity attributable to a particular defendant by a
preponderance of the evidence.” United States v. Bell, 667 F.3d
431, 441 (4th Cir. 2011). “Where there is no drug seizure or
the amount seized does not reflect the scale of the offense, the
court shall approximate the quantity of the controlled
substance.” USSG § 2D1.1 cmt. n.5. A district court may rely
on witness testimony to approximate the drug quantity; however,
“when the approximation is based only upon ‘uncertain’ witness
estimates, district courts should sentence at the low end of the
range to which the witness[] testified.” Bell, 667 F.3d at 441
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(internal quotation marks omitted). Applying these standards to
the record before us, we perceive no clear error in the district
court’s drug quantity finding.
Second, Guerra-Telon argues that the district court erred
in denying him a two-level mitigating role adjustment pursuant
to USSG § 3B1.2(b). “The defendant bears the burden of proving,
by a preponderance of the evidence, that he is entitled to a
mitigating role adjustment in sentencing.” United States v.
Powell, 680 F.3d 350, 358-59 (4th Cir. 2012) (internal quotation
marks omitted). A district court’s determination that a
defendant has not demonstrated his entitlement to a mitigating
role adjustment is a factual finding reviewed for clear error.
Id. at 359. A two-level mitigating role adjustment is
appropriate for a defendant “who is less culpable than most
other participants, but whose role could not be described as
minimal.” USSG § 3B1.2 cmt. n.5. “The critical inquiry in
determining whether a defendant is entitled to an adjustment for
his role in the offense is not just whether the defendant has
done fewer bad acts than his co-defendants, but whether the
defendant’s conduct is material or essential to committing the
offense.” United States v. Dawson, 587 F.3d 640, 646 (4th Cir.
2009) (internal quotation marks omitted).
Guerra-Telon argues that he was entitled to an adjustment
because he was merely a drug courier. A defendant’s role as a
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drug courier, however, “does not automatically entitle him to a
reduction under Guideline § 3B1.2” because a drug courier is not
necessarily “less culpable than other members of a drug
organization.” United States v. White, 875 F.2d 427, 434 (4th
Cir. 1989) (internal quotation marks omitted). Here, the
testimony permitted the conclusion that Guerra-Telon was not
“less culpable than most other participants.” Therefore, the
district court did not clearly err when it denied Guerra-Telon’s
request for a mitigating role adjustment.
Accordingly, we affirm Guerra-Telon’s sentence. We
dispense with oral argument because the parties agree that the
facts and legal contentions are adequately presented in the
materials before this Court and argument would not aid the
decisional process.
AFFIRMED
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