Case: 21-40518 Document: 00516387149 Page: 1 Date Filed: 07/08/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 8, 2022
No. 21-40518 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jorge Alfonso Estrada-Marroquin,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:20-CR-588-1
Before Richman, Chief Judge, and Ho and Engelhardt, Circuit
Judges.
Per Curiam:*
Jorge Estrada-Marroquin pleaded guilty to one count of importing 500
grams or more of a mixture or substance containing methamphetamine. At
sentencing, the district court denied a mitigating-role adjustment under
United States Sentencing Guideline § 3B1.2. We conclude that denial was
*
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opinion should not be published and is not precedent except under the limited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. 21-40518
not clearly erroneous and the court adequately explained the factual basis for
its decision. We remand, however, to allow the district court to correct a
clerical error in its final judgment.
I
Customs and Border Patrol agents caught Estrada-Marroquin
smuggling twenty-two kilograms of a substance containing
methamphetamine across the United States-Mexico border. The agents
discovered multiple trap-door compartments in Estrada-Marroquin’s vehicle
in which forty plastic-wrapped packages of methamphetamine were secreted.
Although the vehicle was registered to Estrada-Marroquin, he said that he
received it from an individual named Guero. Guero had told Estrada-
Marroquin to share his GPS location, drive to San Antonio, and await further
instructions.
Estrada-Marroquin told the agents that, while he was in a Mexican
prison for tax evasion, he met Alejandro Ruedas, a member of the Zetas drug
cartel. He agreed to work for Ruedas upon his release from custody. Estrada-
Marroquin later changed his mind, but he said that the Zetas threatened his
family, so he took money from the cartel to open a carwash and to drive
various vehicles into the United States. Previously, Estrada-Marroquin
explained, the cartel had directed him to make a delivery in Houston.
Estrada-Marroquin believed he was transporting narcotics, though he was
assured it was only money. When he returned to Mexico, the cartel paid
Estrada-Marroquin approximately $2,500 for the delivery.
A grand jury charged Estrada-Marroquin in a four-count indictment.
Count Two was for “import[ing] . . . 500 grams or more, that is,
approximately 22 kilograms of a mixture or substance containing a detectable
amount of methamphetamine.” Estrada-Marroquin pleaded guilty to that
count. In exchange, the Government recommended the dismissal of the
2
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other three counts and a two-level reduction under the Guidelines for
acceptance of responsibility. The district court accepted his plea, found him
guilty, and ordered a presentence investigation report (PSR).
The PSR calculated Estrada-Marroquin’s initial total offense level at
thirty-eight and recommended against a mitigating-role adjustment under
§ 3B1.2. Estrada-Marroquin objected to that recommendation. He asserted
that he was less culpable than the average participant in the crime because he
was only a transporter, acted under the direction of others, did not own the
drugs, and stood to gain only a small percentage of the drugs’ street value.
The probation office agreed that Estrada-Marroquin was only a transporter
but maintained its position that a § 3B1.2 adjustment should not apply. It
emphasized Estrada-Marroquin’s history working with the Zetas cartel,
including his previous delivery to Houston.
At sentencing, the district court denied Estrada-Marroquin’s request
for the adjustment. The court “d[id] not believe that the facts that are in the
Presentence Investigation Report support [an adjustment]” and maintained
that the defendant was “just an average participant in this case.” After a
three-level reduction for acceptance of responsibility pursuant to § 3E1.1, the
district court determined Estrada-Marroquin’s final total offense level to be
thirty-five. It sentenced Estrada-Marroquin to 168 months of imprisonment,
within the Guidelines range. Estrada-Marroquin objected “due to the
[c]ourt not articulating why Mr. Estrada-Marroquin was just as culpable as
the average participant.” The court noted the objection but did not
elaborate. Estrada-Marroquin appealed to this court.
II
Estrada-Marroquin raises three challenges. First, he argues that the
district court clearly erred in denying him a mitigating-role adjustment.
Second, he argues that the district court failed to articulate the factual basis
3
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for its denial of the adjustment. Third, he requests a limited remand to
correct a clerical error in the district court’s final judgment.
A
We begin with the argument that the district court clearly erred in
denying a mitigating-role adjustment. Section 3B1.2 provides for a two-level
decrease in an offense level if the defendant’s role in the criminal activity was
“minor,” a four-level decrease if his or her role was “minimal,” and a three-
level decrease in “cases falling between” the two. 1 A “minor” participant is
one “who is less culpable than most other participants in the criminal
activity, but whose role could not be described as minimal.” 2 A “minimal”
participant is one who is “plainly among the least culpable of those involved
in the conduct of a group” and who shows a “lack of knowledge or
understanding of the scope and structure of the enterprise and of the
activities of others.” 3
“We review the district court’s interpretation and application of the
[G]uidelines de novo and its factual finding that [Estrada-Marroquin] was
neither a minor nor minimal participant for clear error.” 4 “The latter will
not be deemed clearly erroneous if ‘plausible in light of the record as a
whole.’” 5 For a § 3B1.2 adjustment to apply, we have “repeatedly”
explained that defendants must “at best” be “peripheral to the advancement
1
U.S. Sent’g Guidelines Manual § 3B1.2 (U.S. Sent’g Comm’n
2015).
2
§ 3B1.2 cmt. n.5.
3
§ 3B1.2 cmt. n.4.
4
United States v. Bello-Sanchez, 872 F.3d 260, 263 (5th Cir. 2017).
5
Id. (quoting United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005)).
4
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of the illicit activity,” as it is improper to grant the adjustment “simply
because a defendant d[id] less than the other participants.” 6
The defendant bears the burden to establish that a mitigating-role
adjustment is warranted. 7 Estrada-Marroquin must show 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.” 8 To assess relative culpability, courts engage in a “totality
of the circumstances” inquiry “that is heavily dependent upon the facts of
the particular case.” 9 We examine a list of five non-exhaustive factors:
(i) the degree to which the defendant understood the scope and
structure of the criminal activity;
(ii) the degree to which the defendant participated in planning
or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-
making authority or influenced the exercise of decision-making
authority;
(iv) the nature and extent of the defendant’s participation in
the commission of the criminal activity, including the acts the
defendant performed and the responsibility and discretion the
defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from the
criminal activity. 10
6
United States v. Castro, 843 F.3d 608, 613-14 (5th Cir. 2016) (quoting United States
v. Thomas, 932 F.2d 1085, 1092 (5th Cir. 1991)).
7
Bello-Sanchez, 872 F.3d at 263.
8
Castro, 843 F.3d. at 613 (footnote omitted).
9
U.S. Sent’g Guidelines Manual § 3B1.2 cmt. n.3(C) (U.S. Sent’g
Comm’n 2015).
10
Id.
5
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When the § 3B1.2 factors present a “mixed bag,” we have affirmed
the denial of a mitigating-role adjustment. 11 In United States v. Bello-
Sanchez, 12 for example, the defendant understood that she was illegally
importing methamphetamine into the United States, and she was paid for her
participation in the criminal activity. 13 On the other hand, no evidence
suggested that the defendant participated in planning or organizing the
criminal activity, or that she exercised decision-making authority. 14 We
determined that the district court’s denial of a § 3B1.2 adjustment was not
clearly erroneous because “the factors support[ed] a plausible judgment in
either direction.” 15
Here the § 3B1.2 factors cut both ways, too. On one hand, Estrada-
Marroquin knowingly agreed to work with a member of the Zetas drug cartel.
He accepted payment from the cartel to open a carwash and to drive vehicles
into the United States, so he stood to benefit from the crime. He also
previously drove a vehicle into the United States that he suspected contained
narcotics, so he was aware of the cartel’s drug-trafficking operations.
Estrada-Marroquin argues that he played “a very small role in th[e] larger
drug scheme.” That may be true, but the relevant crime is Estrada-
Marroquin’s importing twenty-two kilograms of a substance containing
methamphetamine, not a larger drug conspiracy. 16 As the transporter of all
11
Bello-Sanchez, 872 F.3d at 264; see also United States v. Torres-Hernandez, 843
F.3d 203, 209-10 (5th Cir. 2017) (affirming the denial of a § 3B1.2 mitigating-role
adjustment because several factors favored an adjustment while others did not).
12
872 F.3d 260.
13
Id. at 264.
14
Id.
15
Id. at 264-65.
16
United States v. Stanford, 823 F.3d 814, 852 (5th Cir. 2016) (“[W]hen a sentence
is based on an activity in which a defendant was actually involved, § 3B1.2 does not require
6
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twenty-two kilograms, Estrada-Marroquin was integral to the commission of
his convicted offense.
On the other hand, the cartel supplied Estrada-Marroquin with his
vehicle. He did not know exactly where in the United States he ultimately
was supposed to drive. The cartel only told him to share his GPS location,
drive to San Antonio, and await further instructions. These facts suggest that
Estrada-Marroquin did not participate in planning or organizing the criminal
activity and did not exercise significant decision-making authority. It is also
unclear exactly how much the defendant would benefit from the crime,
although he was paid $2,500 for his previous delivery.
Because the § 3B1.2 factors support a plausible judgment in either
direction, we cannot say that the district court clearly erred in denying
Estrada-Marroquin a mitigating-role adjustment. 17
B
We turn to Estrada-Marroquin’s argument that the district court
failed to articulate the factual basis of its decision to deny the mitigating-role
adjustment. Under United States v. Melton, 18 if a defendant “request[s] that
the court articulate the factual basis for the court’s finding and the reasons
for refusing the reduction, . . . [t]he sentencing court must state for the
a reduction . . . even though the defendant’s activity in a larger conspiracy may have been
minor or minimal” (quoting United States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995) (per
curiam))); Atanda, 60 F.3d at 199 (“To take the larger conspiracy into account only for
purposes of making a downward adjustment in the base level would produce the absurd
result that a defendant involved both as a minor participant in a larger . . . scheme for which
[he] was not convicted, and as a major participant in a smaller scheme for which [he] was
convicted, would receive a shorter sentence than a defendant involved solely in the smaller
scheme.” (quoting United States v. Olibrices, 979 F.2d 1557, 1560 (D.C. Cir. 1992))).
17
See United States v. Bello-Sanchez, 872 F.3d 260, 264-65 (5th Cir. 2017).
18
930 F.2d 1096 (5th Cir. 1991).
7
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record the factual basis upon which it concludes that a requested reduction
for minor participation is, or is not, appropriate.” 19 We have, however,
“rejected the proposition that a court must make a catechismic regurgitation
of each fact determined.” 20 “[I]nstead, we have allowed the district court to
make implicit findings by adopting the PSR.” 21
In United States v. Johnson, 22 we held that the district court did not
need to “specifically elucidate the factual basis for finding [the defendant] to
be an average participant.” 23 At sentencing, the judge “conclud[ed] based
on a preponderance of the evidence that has a sufficient indicia [sic] of
reliability to support its probable accuracy that the defendant was not a minor
participant in the criminal activity in question.” 24 We reasoned that it was
clear from that statement that the judge was referencing the PSR’s findings,
and that was adequate under Melton. 25
Here the district court relied on the PSR’s factual findings to deny the
mitigating-role adjustment, satisfying Melton. At sentencing, the district
court judge stated that “I do not believe that the facts that are in the
Presentence Investigation Report support [a role adjustment],” and “the
19
Id. at 1099.
20
United States v. Gallardo-Trapero, 185 F.3d 307, 324 (5th Cir. 1999) (internal
quotation marks omitted) (quoting United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.
1994)).
21
Id. (quoting Carreon, 11 F.3d at 1230); see also United States v. Garcia, 86 F.3d
394, 401 (5th Cir. 1996) (“The district court can implicitly make such findings by adopting
the presentence report.”).
22
No. 92-1872, 1993 WL 309730 (5th Cir. May 3, 1993) (unpublished yet
precedential under 5th Cir. R. 47.5.3).
23
Id. at *3.
24
Id.
25
Id.
8
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Court believes that you are just an average participant in this case.” The
court also indicated that it had “consider[ed] everything that ha[d] been
presented,” which included the PSR as well as Estrada-Marroquin’s
objections and arguments. Finally, the court explicitly adopted the PSR.
Accordingly, the court adequately articulated the factual basis for its denying
the mitigating-role adjustment.
C
Lastly, we address Estrada-Marroquin’s request for a remand with
instructions to correct a clerical error in the district court’s final judgment.
No one disputes that the judgment contains an error. It describes Estrada-
Marroquin’s offense of conviction as “[i]mporting 500 grams or more, that
is, approximately 22 kilograms of methamphetamine.” Count Two of the
indictment, however, charged Estrada-Marroquin with “import[ing] . . . 500
grams or more, that is, approximately 22 kilograms of a mixture or substance
containing a detectable amount of methamphetamine.” That is the offense to
which Estrada-Marroquin pleaded guilty. We have routinely remanded cases
with clerical errors for the limited purpose of correcting those errors under
Federal Rule of Criminal Procedure 36. 26 We do so again here.
* * *
The district court did not clearly err in denying Estrada-Marroquin a
mitigating-role adjustment and adequately explained the factual basis of its
denial. We REMAND, however, for the limited purpose of correcting the
clerical error in the final judgment.
26
See, e.g., United States v. Perez-Melis, 882 F.3d 161, 168 (5th Cir. 2018); see also
Fed. R. Crim. P. 36 (“After giving any notice it considers appropriate, the court may at
any time correct a clerical error in a judgment, order, or other part of the record, or correct
an error in the record arising from oversight or omission.”).
9