Case: 18-41002 Document: 00515402321 Page: 1 Date Filed: 05/01/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-41002 May 1, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DIEGO PALACIOS-VILLALON,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:17-CR-1929-1
Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Diego Palacios-Villalon challenges his sentence at the bottom of his
advisory Sentencing Guidelines sentencing range (57-months’ imprisonment),
imposed upon his pleading guilty to importing five kilograms or more of a
mixture or substance containing a detectable amount of cocaine, in violation of
18 U.S.C. § 2 and 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(1)(B). He asserts
the district court erred by refusing to reduce his offense level under Guideline
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 18-41002
§ 3B1.2 (mitigating role), contending: he was entitled to a mitigating-role
reduction because his conduct was limited to transporting drugs and nothing
in the record shows he understood the scope and structure of the criminal
activity, participated in its planning or organizing, or exercised any decision-
making authority; and the court erred by failing to make required findings
pursuant to United States v. Sanchez-Villarreal, 857 F.3d 714, 722 (5th Cir.
2017), regarding the criminal activity’s average participant.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
Understandably, deciding whether to apply a mitigating-role reduction
under Guideline § 3B1.2 is a factual finding reviewed for clear error. United
States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (citation omitted). In
that regard, “[a] factual finding is not clearly erroneous if it is plausible in [the]
light of the record read as a whole”. Id. (citation omitted). And, critical to the
issues at hand, to establish entitlement to a mitigating-role reduction,
defendant has the burden of showing, “by a preponderance of the evidence: (1)
the culpability of the average participant in the criminal activity; and (2) . . .
[defendant] was substantially less culpable than that participant”. United
States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016) (footnote omitted).
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No. 18-41002
Palacios has not satisfied this burden. He has totally failed to: show the
level of culpability of the average participant in the offense, establish his own
relative level of culpability, or otherwise demonstrate that he did so much less
than other participants that he was peripheral to the criminal activity’s
advancement. See id. at 613–14 (citation omitted). Consequently, he has not
shown entitlement to a mitigating-role reduction, see id., and his contention
based on Sanchez-Villarreal also fails. See United States v. Garcia-Miranda,
780 F. App’x 127, 131 (5th Cir. 2019) (per curiam) (noting, when affirming
sentencing court’s determination defendant was not entitled to Guideline
§ 3B1.2 reduction, that “[i]n [the] light of [defendant’s] failure of proof, and
despite the [court’s] absence of findings of what constituted the average, we see
no basis for reversal”).
AFFIRMED.
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