IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 1, 2009
No. 08-40645
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAIME GARZA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-693-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Jaime Garza appeals the 120-month sentence imposed following his guilty
plea to knowingly possessing with intent to distribute 2.18 kilograms of cocaine,
in violation of 21 U.S.C. § 841. He contends: the district court incorrectly raised
his base offense level by determining he qualified as a career offender; and, it
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-40645
erred in refusing to grant him a minimal or, in the alternative, minor, role
reduction.
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the
guildeline-sentencing range for use in deciding on the sentence to impose. Gall
v. United States, 128 S. Ct. 586, 598 (2007). In that respect, 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); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
Garza had prior convictions in North Carolina for possession with intent
to sell or deliver both marijuana and cocaine. He contends the district court
committed reversible error in concluding his prior North Carolina offenses were
“controlled substance offenses” and in using those convictions to sentence him
as a career offender under Sentencing Guideline § 4B1.1.
Pursuant to Guideline § 4B1.1(a), a defendant is a career offender if, in
relevant part, he “has at least two prior felony convictions of . . . a controlled
substance offense”. U.S.S.G. § 4B1.1(a)(3). A “controlled substance offense” is
defined as “an offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that prohibits the . . . possession of a controlled
substance . . . with intent to manufacture, import, export, distribute, or
dispense”. U.S.S.G. § 4B1.2(b). Whether a conviction is “punishable by
imprisonment for a term exceeding one year” depends on whether the offense
carries a potential sentence of more than one year, rather than whether an
individual defendant convicted of that offense meets the criteria for a sentence
of that length. See United States v. Caicedo-Cuero, 312 F.3d 697, 699-700, 705-
06 (5th Cir. 2002); see also United States v. Harp, 406 F.3d 242, 245-46 (4th Cir.
2005).
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No. 08-40645
Under North Carolina’s sentencing scheme, Garza’s conviction for
possession with intent to sell or deliver marijuana was a Class I offense, which
carries a maximum potential sentence of 15 months. N.C. G EN. S TAT. A NN.
§ 15A-1340.17(d). His conviction for possession with intent to deliver cocaine
was a Class H offense, which has a maximum potential sentence of 30 months.
N.C. G EN. S TAT. A NN. § 15A-1340.17(d). Because the maximum statutory
sentence for each of Garza’s North Carolina convictions exceeded one year, they
constituted “controlled substance offenses” supporting the Guideline § 4B1.1
enhancement.
Garza also maintains the district court erred by denying his motion for a
mitigating-role adjustment under Sentencing Guideline § 3B1.2 (providing a
decrease in offense level if the defendant was a minor or minimal participant in
the criminal activity at issue). Whether the defendant is a minor or minimal
participant is a factual determination, reviewed only for clear error. E.g., United
States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005).
Garza’s courier status alone did not entitle him to a role adjustment
because a defendant may be a courier without being “substantially less culpable
than the average participant”. United States v. Brown, 54 F.3d 234, 241 (5th
Cir. 1995). If a sentence is based on activity in which a defendant was actually
involved, Guideline § 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. United States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995).
Garza admitted he was aware he was driving a vehicle with drugs
concealed in the engine. Accordingly, the district court did not clearly err in
denying his request for a reduction based on his role in the offense.
AFFIRMED.
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