Case: 20-40077 Document: 00515584516 Page: 1 Date Filed: 09/30/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 30, 2020
No. 20-40077
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Lilia Abril Olmedo-Perez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-1088-1
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Lilia Abril Olmedo-Perez pleaded guilty to, inter alia, importing 500
grams or more of cocaine, in violation of 21 U.S.C. §§ 952(a); 960(a)(1) and
(b)(2). The district court sentenced her below the advisory Sentencing
Guidelines sentencing range to 80 months’ imprisonment. As she did in
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40077 Document: 00515584516 Page: 2 Date Filed: 09/30/2020
No. 20-40077
district court, Olmedo challenges the court’s not granting a mitigating-role
reduction under Guideline § 3B1.2.
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). In this instance, only a claimed procedural error is
at issue.
Our court’s review of factual findings includes the district court’s
deciding whether defendant was a minor or minimal participant in order to
apply a mitigating-role reduction under Guideline § 3B1.2. United States v.
Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016). “A factual finding is not
clearly erroneous if it is plausible in light of the record read as a whole.” Id.
(internal quotation marks and citation omitted). Defendant’s burden of
showing her entitlement to a mitigating-role reduction must include two
things: “(1) the culpability of the average participant in the criminal activity;
and (2) that [defendant] was substantially less culpable than that
participant”. United States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016)
(footnote omitted).
Olmedo contends she was not involved as a leader, organizer, or
supervisor; but, that contention alone is not enough. Again, she has the
burden of proof. See id. at 613. Her objections to the presentence
investigation report (PSR) failed to include information about the average
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No. 20-40077
culpability of a participant. Similarly, she did not include facts to suggest she
was less culpable than the average participant. Nor did she otherwise
demonstrate that she participated so much less than other participants that
she was peripheral to the advancement of criminal activity.
Instead, the PSR and record show Olmedo attempted to enter the
United States while smuggling nearly four kilograms of cocaine and two
kilograms of another drug. On an unknown number of prior occasions, she
smuggled drugs and illicit proceeds between Mexico and the United States
and was paid for those operations. In the light of these facts, the district court
found Olmedo was at least an average participant. Given the court’s findings
and Olmedo’s failure to provide necessary evidence to the contrary, the
denial of the reduction was plausible in the light of the whole record. See
Gomez-Valle, 828 F.3d at 327.
AFFIRMED.
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