Case: 21-50064 Document: 00516032783 Page: 1 Date Filed: 09/28/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-50064 September 28, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Salvador Rea,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-349-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Defendant-Appellant Salvador Rea appeals his sentence following his
conviction for possession of marijuana with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B). He contends that the district court
committed clear error by denying him a minor role adjustment under § 3B1.2
*
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opinion should not be published and is not precedent except under the limited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. 21-50064
of the Sentencing Guidelines. He asserts that, because he was a one-time
drug courier who was given specific orders and had no ability to exercise
discretion, he was substantially less culpable than the average participant and
is thus entitled to the minor role adjustment. He also asserts that his
statements in the presentence report (PSR) regarding his level of
involvement in the offense had sufficient indicia of reliability, even though
they were uncorroborated, and that the PSR, the PSR addenda, and the
district court did not provide any analysis of the Guidelines factors or his
culpability in comparison to the average participant.
Under § 3B1.2, a defendant’s offense level is reduced by two if the
court finds that his or her role in the offense was that of a minor participant,
meaning that he or she is “less culpable than most other participants in the
criminal activity, but [had a] role [that] could not be described as minimal.”
U.S.S.G. § 3B1.2 cmt. n.5. Whether a defendant was a minor or minimal
participant under § 3B1.2 is a factual determination that we review for clear
error. United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016). The
defendant has the burden of demonstrating his entitlement to a minor role
adjustment by a preponderance of the evidence. United States v. Castro, 843
F.3d 608, 612 (5th Cir. 2016). A district court has not clearly erred if the
finding is plausible considering the record. Gomez-Valle, 828 F.3d at 327.
To the extent Rea contends that the district court failed to consider
the non-exhaustive list of factors in application note 3(C) to § 3B1.2, the
district court need not explicitly discuss each factor on the record. See United
States v. Torres-Hernandez, 843 F.3d 203, 209–10 (5th Cir. 2016). And Rea
has not otherwise shown that the district court clearly erred by rejecting his
arguments for a minor role adjustment. See United States v. Bello-Sanchez, 872
F.3d 260, 264–65 (5th Cir. 2017); Gomez-Valle, 828 F.3d at 327. Notably,
Rea’s own description of his involvement in the offense presents, at best, a
“mixed bag.” See Bello-Sanchez, 872 F.3d at 264. For example, his
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No. 21-50064
statements that he was instructed where to go and that he was not involved
in the loading of the truck could indicate a lack of decision-making authority,
a lack of discretion in participation, and a lack of involvement in the planning
or organizing of the activity. See § 3B1.2 cmt. n.3(C)(ii)–(iv). On the other
hand, his statement that he was to be paid over $5,000 to deliver the drugs
and law enforcement’s statement that numerous bundles of marijuana,
totaling 210.01 kilograms, were spread throughout the passenger side front
seat and throughout the rear of the vehicle, could show that he benefitted
from and understood the scope of the criminal activity and that he
participated substantially in the activity. See id. n.3(C)(i), (iv), (v). Under the
totality of the circumstances, the factors can be plausibly interpreted to
support a judgment either way; thus, Rea has not demonstrated that the
district court committed clear error. See Bello-Sanchez, 872 F.3d at 264–65
(finding no clear error where factors supported plausible judgment in either
direction); Gomez-Valle, 828 F.3d at 327.
AFFIRMED.
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