US v. Nestor Guerra-Telon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:13-cr-00631-HMH-5 Copies to all parties and the district court/agency. [999535023].. [14-4354]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4354

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NESTOR GUERRA-TELON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville.
Henry M. Herlong, Jr., Senior
District Judge. (6:13-cr-00631-HMH-5)

Submitted:

February 12, 2015

Decided:

February 25, 2015

Before MOTZ, KING, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jerome Lee, TAYLOR LEE & ASSOCIATES, LLC, Norcross, Georgia, for
Appellant.
William N. Nettles, United States Attorney, Andrew
B. Moorman, Sr., Assistant United States Attorney, Greenville,
South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A

jury

convicted

Nestor

Guerra-Telon

of

conspiracy

to

possess with intent to distribute and to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (2012).
district court imposed a sentence of 140 months.
Guerra-Telon challenges his sentence.

The

On appeal,

We affirm.

First, Guerra-Telon argues that the district court erred
when it used a drug quantity of 3.5 to five kilograms of cocaine
to set his base offense level at thirty.

See U.S. Sentencing

Guidelines Manual § 2D1.1(c)(5) (drug quantity table) (2013).
district

court’s

drug

quantity

determination

finding reviewed for clear error.

is

a

A

factual

United States v. Mann, 709

F.3d 301, 304 (4th Cir. 2013).
“For
drug

sentencing

quantity

purposes,

attributable

the

to

a

preponderance of the evidence.”
431, 441 (4th Cir. 2011).

government
particular

must

prove

defendant

by

the
a

United States v. Bell, 667 F.3d

“Where there is no drug seizure or

the amount seized does not reflect the scale of the offense, the
court

shall

substance.”

approximate

the

quantity

USSG § 2D1.1 cmt. n.5.

of

the

controlled

A district court may rely

on witness testimony to approximate the drug quantity; however,
“when the approximation is based only upon ‘uncertain’ witness
estimates, district courts should sentence at the low end of the
range to which the witness[] testified.”
2

Bell, 667 F.3d at 441

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(internal quotation marks omitted).

Applying these standards to

the record before us, we perceive no clear error in the district
court’s drug quantity finding.
Second, Guerra-Telon argues that the district court erred
in denying him a two-level mitigating role adjustment pursuant
to USSG § 3B1.2(b).

“The defendant bears the burden of proving,

by a preponderance of the evidence, that he is entitled to a
mitigating role adjustment in sentencing.”

United States v.

Powell, 680 F.3d 350, 358-59 (4th Cir. 2012) (internal quotation
marks

omitted).

A

district

court’s

determination

that

a

defendant has not demonstrated his entitlement to a mitigating
role adjustment is a factual finding reviewed for clear error.
Id.

at

359.

appropriate

for

A
a

two-level
defendant

mitigating
“who

is

less

role

adjustment

culpable

than

is
most

other participants, but whose role could not be described as
minimal.”

USSG § 3B1.2 cmt. n.5.

“The critical inquiry in

determining whether a defendant is entitled to an adjustment for
his role in the offense is not just whether the defendant has
done

fewer

bad

acts

than

his

co-defendants,

but

whether

the

defendant’s conduct is material or essential to committing the
offense.”

United States v. Dawson, 587 F.3d 640, 646 (4th Cir.

2009) (internal quotation marks omitted).
Guerra-Telon argues that he was entitled to an adjustment
because he was merely a drug courier.
3

A defendant’s role as a

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drug courier, however, “does not automatically entitle him to a
reduction under Guideline § 3B1.2” because a drug courier is not
necessarily

“less

organization.”
Cir.

1989)

testimony

culpable

than

other

members

of

a

drug

United States v. White, 875 F.2d 427, 434 (4th

(internal

permitted

quotation

the

marks

conclusion

that

omitted).

Here,

Guerra-Telon

“less culpable than most other participants.”

was

the
not

Therefore, the

district court did not clearly err when it denied Guerra-Telon’s
request for a mitigating role adjustment.
Accordingly,

we

affirm

Guerra-Telon’s

sentence.

We

dispense with oral argument because the parties agree that the
facts

and

materials

legal
before

contentions

are

adequately

this

and

argument

Court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

4