United States v. Castillo

Case: 20-40460 Document: 00515773941 Page: 1 Date Filed: 03/10/2021

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
March 10, 2021
No. 20-40460
Lyle W. Cayce
Summary Calendar
Clerk

United States of America,

Plaintiff—Appellee,

versus

John Albert Castillo,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CR-1687-1

Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
John Albert Castillo pleaded guilty without a plea agreement to
conspiracy to possess with intent to distribute more than 50 grams of
methamphetamine, and he was sentenced below the guideline range to 216
months of imprisonment and five years of supervised release. Castillo argues

*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-40460

that the district court erred in denying him a two-level downward adjustment
as a minor participant under U.S.S.G. § 3B1.2(b). He contends that the
evidence showed that he acted as a courier, and that he had little knowledge
about the operation of the conspiracy other than his own acts in taking orders
to transport contraband and money from one location to another, for which
he was paid small amounts. He contrasts his role with that of other
participants who engaged in organizing the transportation of the drugs across
the border, trafficked methamphetamine in much greater quantities, and
networked with other gangs.
A sentencing court’s denial of a mitigating role adjustment is a factual
finding reviewed for clear error. United States v. Fernandez, 770 F.3d 340,
345 (5th Cir. 2014). We will not conclude that a district court’s factual
finding is clearly erroneous as long as it is plausible in light of the record as a
whole. Id.
A § 3B1.2 reduction for a mitigating role applies only when a
defendant is “‘substantially less culpable than the average participant.’”
United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005) (quote at
204) (quoting § 3B1.2, comment. (n.3(A))). “It is not enough that a
defendant does less than other participants; in order to qualify as a minor
participant, a defendant must have been peripheral to the advancement of the
illicit activity.” Villanueva, 408 F.3d at 204 (internal quotation marks and
citation omitted). The defendant has the burden of showing that he is
entitled to the mitigating role adjustment. United States v. Angeles-Mendoza,
407 F.3d 742, 753 (5th Cir. 2005).
A defendant’s status as a “courier” does not automatically entitle him
to a minor role adjustment. See United States v. Buenrostro, 868 F.2d 135, 138
(5th Cir. 1989). The determination turns not on courier status but on
culpability, which is sensitive “to a variety of factors,” United States v.

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No. 20-40460

Gallegos, 868 F.2d 711, 713 (5th Cir. 1989), such as those outlined in U.S.S.G.
§ 3B1.2, comment. (n.3(C)(i)-(v)).
The record shows that Castillo was aware of the structure and scope
of the conspiracy, and that he knew exactly how his group was receiving drug
shipments by load vehicles and by bus. The nature and extent of Castillo’s
participation in the drug conspiracy consisted of receiving weekly deliveries
of methamphetamine from Robert Lee Vasquez and delivering those drugs
to at least two other persons. Castillo also picked up drug proceeds and
delivered the money to Vasquez. Vasquez had on at least one occasion asked
Castillo to pick up a load vehicle. Castillo benefited from his participation,
being paid $50 per delivery, although his interest was apparently not
proprietary. However, his role was not a one-time task but a recurring weekly
role upon which he could count on weekly payments. Although Castillo may
not have had decision-making authority or have been involved in the planning
or organizing, these factors are not dispositive. See United States v. Bello-
Sanchez, 872 F.3d 260, 264-65 (5th Cir. 2017).
Castillo’s role in the offense was as a local dealer, acting as a
middleman between Vasquez and others, receiving deliveries of
methamphetamine, delivering the methamphetamine to others for resale,
collecting payments for the drugs, and delivering the drug proceeds to
Vasquez, as Vasquez’s “right-hand man.” Although other individuals
imported the methamphetamine and provided the methamphetamine to him,
Castillo’s middleman role was neither substantially less culpable than that of
the other defendants nor only a peripheral part of the overall criminal
scheme. See United States v. Silva-De Hoyos, 702 F.3d 843, 846-47 (5th Cir.
2012); see also Buenrostro, 868 F.2d at 138 (noting that “couriers are an
indispensable part of drug dealing networks”). That others may have had a
greater role than Castillo does not establish that he was peripheral to the
criminal activity or less culpable. The district court’s finding that Castillo

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No. 20-40460

was not a minor participant was not clearly erroneous because it was
“plausible in light of the record read as a whole.” See Villanueva, 408 F.3d
at 203.
Castillo also argues that the district court clearly erred by including a
two-level upward adjustment for importation under U.S.S.G. § 2D1.1(b)(5)
because he was entitled to the minor role adjustment, and that the district
court erred by not reducing his base offense level due to his status as a minor
participant under § 2D1.1(a)(5). Because the district court did not clearly err
in finding that Castillo was not entitled to a minor role adjustment, the
district court also did not clearly err in either of these respects. See
Fernandez, 770 F.3d at 345.
AFFIRMED.

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