Case: 18-40725 Document: 00515014633 Page: 1 Date Filed: 06/28/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-40725
Fifth Circuit
FILED
Summary Calendar June 28, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JOSE ARMANDO BAZAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-1376-4
Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Jose Armando Bazan appeals the 24-month
sentence imposed in connection with his conviction for conspiracy to possess
with the intent to distribute 500 grams or more of cocaine. For the first time
on appeal, Bazan contends that the district court plainly erred in failing to
award an offense level reduction under U.S.S.G. § 3B1.2 for having a
mitigating role 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-40725 Document: 00515014633 Page: 2 Date Filed: 06/28/2019
No. 18-40725
Whether Bazan was a minor or minimal participant under § 3B1.2 is a
factual determination. See United States v. Villanueva, 408 F.3d 193, 203 (5th
Cir. 2005). Because this issue was a question of fact capable of resolution at
sentencing, the issue “can never constitute plain error.” United States v.
Fierro, 38 F.3d 761, 774 (5th Cir. 1994).
Accordingly, the judgment of the district court is AFFIRMED.
2