Case: 19-10687 Document: 00515667201 Page: 1 Date Filed: 12/09/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 9, 2020
No. 19-10687
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Noe Paramo Castaneda,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-32-2
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Noe Paramo Castaneda pleaded guilty to conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine. The district
court sentenced him below the advisory guidelines range to 180 months’
*
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opinion should not be published and is not precedent except under the limited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: 19-10687 Document: 00515667201 Page: 2 Date Filed: 12/09/2020
No. 19-10687
imprisonment and two years of supervised release. Castaneda timely
appealed his sentence.
The applicable advisory guideline range of 262 to 327 months of
imprisonment included, inter alia, a hazardous-waste enhancement. Section
2D1.1(b)(14)(A) of the sentencing guidelines provides a two-level
enhancement “[i]f the offense involved (i) an unlawful discharge, emission,
or release into the environment of a hazardous or toxic substance; or (ii) the
unlawful transportation, treatment, storage, or disposal of a hazardous
waste.” U.S.S.G. § 2D1.1(b)(14)(A). Castaneda argues that this
enhancement was erroneous because there was no evidence that the
materials seized at the methamphetamine conversion laboratory—at which
Castaneda worked with his codefendant Victor Leonel Ortiz Alvarez to
convert liquid methamphetamine into crystal form for distribution—were
hazardous. The government responds that sufficient evidence in the record
supports the enhancement because the presentence investigation report
(PSR) stated that acetone cans were seized from the conversion laboratory
and an environmental-services firm was required to dispose of other
substances found at the same site.
We need not resolve this dispute, however, because any error in
calculating Castaneda’s advisory guidelines range was harmless. The district
court overruled Castaneda’s objections to the PSR (including the hazardous-
waste enhancement) and refused Castaneda’s request for an 87-month
sentence. Instead, the district court imposed a sentence of 180 months. The
district court further stated:
Not only do I consider the sentence a reasonable sentence that
takes into account in an appropriate manner all the factors the
Court should consider in sentencing under 18
[U.S.C. §] 3553(a), it’s the same sentence the Court would
have imposed without regard to the ruling the Court would
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Case: 19-10687 Document: 00515667201 Page: 3 Date Filed: 12/09/2020
No. 19-10687
have made or could have made on the objections the defendant
has made to certain paragraphs in the Presentence Report.
Given the unequivocal statements by the district court that it would
impose the same 180-month sentence even if it erred in its guidelines range
calculation, we will not disturb the sentence for harmless error. See United
States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010); see also United States
v. Castro-Alfonso, 841 F.3d 292, 298-99 (5th Cir. 2016).
Castaneda also contends that the district court erred in rejecting his
request for a mitigating role adjustment without considering the factors set
forth in the commentary to U.S.S.G. § 3B1.2. According to Castaneda, he
was entitled to a reduction because his involvement in the offense was
minimal compared to Ortiz Alvarez. Whether a defendant was a minor or
minimal participant under § 3B1.2 is a factual finding reviewed for clear error.
United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016).
The PSR noted that Castaneda understood the full scope of the
criminal activity and played an integral role in the offense by guarding the
conversion laboratory and assisting Ortiz Alvarez in the conversion of the
methamphetamine that was to be distributed. See U.S.S.G. § 3B1.2, cmt.
n.3(C). As the district court determined, these facts demonstrate that
Castaneda’s involvement was not “peripheral to the advancement of the
illicit activity,” United States v. Tremelling, 43 F.3d 148, 153 (5th Cir. 1995),
but rather was necessary to Ortiz Alvarez’s activity. The district court’s
refusal to grant a mitigating role adjustment was not clearly erroneous. See
Torres-Hernandez, 843 F.3d at 209–10.
AFFIRMED.
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