Case: 20-10549 Document: 00515887917 Page: 1 Date Filed: 06/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 4, 2021
No. 20-10549
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Henry Echarte-Rivero,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-36-1
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Henry Echarte-Rivero was convicted by a jury of conspiracy to
possess, with intent to distribute, 50 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841 and 846. He was sentenced to, inter alia, a
below-Sentencing Guidelines sentence of 188 months’ imprisonment.
*
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opinion should not be published and is not precedent except under the limited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: 20-10549 Document: 00515887917 Page: 2 Date Filed: 06/04/2021
No. 20-10549
Although post-Booker, the Sentencing 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, as in this instance, 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).
Solely at issue on appeal is Echarte’s claiming the district court erred
in denying a minor-role reduction to his offense level. Whether a defendant
qualifies for a mitigating role adjustment under Guideline § 3B1.2 is a factual
finding reviewed, as discussed above, only for clear error. United States v.
Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). A factual finding is not
clearly erroneous if it is “plausible in light of the record as a whole”. Id.
(citation omitted). Echarte presents two bases in support of his claim.
First, he contends a role adjustment was required because the
Government asserted to the jury he played “a minor part” in a larger
conspiracy (separate, but related to, the conspiracy from which Echarte’s
conviction stems). Those Government assertions came, however, after the
jury heard testimony regarding a larger, years-long conspiracy investigation
by the FBI, and the Government stated correctly the law regarding
participation in a conspiracy. “When a sentence is based on an activity in
which a defendant was actually involved, § 3B1.2 does not require a reduction
in the base offense level even though the defendant’s activity in a larger
conspiracy may have been minor or minimal.” United States v. Stanford, 823
F.3d 814, 852 (5th Cir. 2016) (citation omitted).
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No. 20-10549
For his other basis, Echarte claims the court overruled his objection
for sentencing because of its erroneous determination he was integral to the
conspiracy. He contends there was no evidence he was involved in
organizing the transaction or knew the scope of the conspiracy.
This contention ignores the trial testimony of FBI agents and a co-
conspirator. Additionally, the court considered Echarte’s substantial aid in
the transportation and attempted delivery of three kilograms of
methamphetamine with full knowledge of the scope and goals of the
conspiracy and his own role in the offense. It also considered Echarte’s
negotiating with his co-conspirators about the delivery, and his acting as a
lookout or backup when a co-defendant received the methamphetamine from
another individual. Given all the above, the court’s finding Echarte was an
average participant is plausible in the light of the record as a whole. See
Torres-Hernandez, 843 F.3d at 207.
AFFIRMED.
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