Case: 21-40150 Document: 00516054594 Page: 1 Date Filed: 10/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 14, 2021
No. 21-40150 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Brian Alan Herrera-Valenzuela,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-780-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Brian Alan Herrera-Valenzuela appeals his 168-month sentence for
importing 500 grams or more of methamphetamine. 21 U.S.C. §§ 952(a),
960(a)(1), (b)(1); 18 U.S.C. § 2. He argues the district court erred in denying
him a mitigating role reduction under U.S.S.G. § 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opinion should not be published and is not precedent except under the limited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.
Case: 21-40150 Document: 00516054594 Page: 2 Date Filed: 10/14/2021
No. 21-40150
Whether a defendant is a minor or minimal participant under § 3B1.2
is a factual determination that this court reviews for clear error. United States
v. Castro, 843 F.3d 608, 612 (5th Cir. 2016). “A factual finding is not clearly
erroneous if it is plausible in light of the record read as a whole.” Id. (internal
quotation marks and citation omitted). Herrera-Valenzuela is entitled to a
mitigating role adjustment only if he shows by a preponderance of the
evidence: “(1) the culpability of the average participant in the criminal
activity; and (2) that [he] was substantially less culpable than that
participant.” Id. at 613 (footnote omitted).
The record does not support Herrera-Valenzuela’s contentions that
the district court improperly compared his conduct to that of drug
transporters in unrelated cases, persuaded the prosecutor to withdraw her
recommendation for the adjustment, or concluded that he was precluded
from receiving the adjustment because he had admitted to transporting drugs
on a prior occasion. Rather, the record reflects that Herrera-Valenzuela
transported a large quantity of methamphetamine in a vehicle registered in
his name, and he was entrusted to bring back thousands of dollars to a co-
conspirator in Mexico. In light of these facts, the district court did not clearly
err in denying a mitigating role adjustment. See id. at 612-13; United States v.
Anchundia-Espinoza, 897 F.3d 629, 634-35 (5th Cir. 2018).
AFFIRMED.
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