Case: 20-10683 Document: 00515915191 Page: 1 Date Filed: 06/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 25, 2021
No. 20-10683
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Antonio Lorensito Garrido,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-309-3
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Antonio Lorensito Garrido pleaded guilty to conspiring to possess
with intent to distribute 500 grams or more of a mixture or substance
containing methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(a)(1), (b)(1)(A). The district court varied downward from the advisory
*
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opinion should not be published and is not precedent except under the limited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. 20-10683
guidelines range and sentenced him to 144 months in prison with five years
of supervised release. On appeal, he challenges the denial of a mitigating-role
adjustment under U.S.S.G. § 3B1.2 and the imposition of an enhancement
under U.S.S.G. § 2D1.1(b)(5). We find no error and affirm.
Under § 3B1.2, a downward adjustment is available to a defendant
“who plays a part in committing the offense that makes him substantially less
culpable than the average participant in the criminal activity.” § 3B1.2, cmt.
n.3(A). It is the defendant’s burden to prove by a preponderance of the
evidence that such an adjustment is warranted. United States v. Torres-
Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). To carry this burden, a
defendant must show “(1) the culpability of the average participant in the
criminal activity; and (2) that [he] was substantially less culpable than that
participant.” United States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016)
(footnote omitted). Whether a defendant is entitled to a § 3B1.2 adjustment
is a factual determination reviewed for clear error, and “[a] factual finding is
not clearly erroneous if it is plausible in light of the record read as a whole.”
United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (internal
quotation marks and citation omitted).
The commentary to § 3B1.2 provides a “non-exhaustive list of
factors” for courts to consider in assessing culpability for purposes of this
Guideline. See § 3B1.2, cmt. n.3(C)(i)–(v). As Lorensito Garrido notes,
some of the factors tend to favor an adjustment here—for instance, there is
no evidence that he planned or organized the criminal activity, or that he was
involved in decision making. These “are only factors,” however, Torres-
Hernandez, 843 F.3d at 209, and “how those factors are weighed remains
within the sentencing court’s discretion,” id. at 210. The focus of § 3B1.2 is
the defendant’s relative culpability, the determination of which is “heavily
dependent” on the facts of his case. § 3B1.2, cmt. n.3(C); see United States
v. Escobar, 866 F.3d 333, 335 (5th Cir. 2017). It is not apparent on this record
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No. 20-10683
that Lorensito Garrido is substantially less culpable than the average
participant in the offense, and the contrary determination of the district court
is plausible in light of the record as a whole. Therefore, the determination
was not clearly erroneous. See United States v. Bello-Sanchez, 872 F.3d 260,
264–65 (5th Cir. 2017); Gomez-Valle, 828 F.3d at 327.
Regarding the § 2D1.1(b)(5) enhancement, Lorensito Garrido argues
it was unwarranted because he was entitled to a mitigating-role adjustment
under § 3B1.2. This argument fails for the reasons given above. Lorensito
Garrido also contends that the district court should not have imposed the
enhancement because he was unaware the methamphetamine in question
was imported. As he acknowledges, however, that argument is foreclosed by
binding precedent. See United States v. Foulks, 747 F.3d 914, 915 (5th Cir.
2014); United States v. Serfass, 684 F.3d 548, 550–53 (5th Cir. 2012); see also
Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
AFFIRMED.
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