USA v. Salvador Marquez

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USA v. Salvador Marquez Doc. 0 Case: 09-11085 Document: 00511174169 Page: 1 Date Filed: 07/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-11085 S u m m a r y Calendar July 15, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff Appellee v. S A L V A D O R MARQUEZ, D e fe n d a n t Appellant A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:09-CR-67-3 B e fo r e HIGGINBOTHAM, BENAVIDES, and SOUTHWICK, Circuit Judges. P E R CURIAM:* S alv a d o r Marquez appeals his sentence following his guilty plea conviction fo r possession with intent to distribute methamphetamine and aiding and a b e ttin g . He contends that the district court clearly erred in denying a m it ig a t in g role adjustment under U.S.S.G. 3B1.2. Section 3B1.2 provides for a four-level reduction in a defendant's offense level if the defendant was a " m in im a l" participant in a concerted criminal activity, a two-level reduction in h is offense level if he was a "minor" participant, and a three-level reduction if 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-11085 Document: 00511174169 Page: 2 No. 09-11085 Date Filed: 07/15/2010 t h e defendant's role fell between that of a "minimal" participant and a "minor" p a r tic ip a n t .1 T h e burden is on the defendant to establish by a preponderance of the e v id e n c e that he is entitled to a mitigating role adjustment under 3B1.2.2 And " 3B1.2 only applies when a defendant is `substantially less culpable than the a v e r a g e participant.'"3 "It is not enough that a defendant does less than other p a r tic ip a n t s ; in order to qualify as a minor participant, a defendant must have b e e n peripheral to the advancement of the illicit activity."4 Whether Marquez w a s entitled to a reduction under 3B1.2 is a factual determination that is r e v ie w e d for clear error.5 "A factual finding is not clearly erroneous if it is p la u s ib le in light of the record read as a whole." 6 M a r q u e z 's statements to authorities concerning his involvement with the d r u g trafficking dealings of one of his co-defendants, Jaime Luna, indicate that M a r q u e z had an established and ongoing relationship with Luna's drug t r a ffic k in g activities and stood to profit from the specific activity that led to the a r r e s t s in this case. Marquez was the only participant in Luna's drug trafficking a c t iv it ie s who accompanied Luna to both of the transfers of methamphetamine. After Marquez's arrest, investigators found inside Marquez's residence materials c o n s is t e n t with drug trafficking, such as electronic scales and a clear plastic bag c o n t a in in g methamphetamine residue that was similar to the bag used in the t r a n s fe r of one pound of methamphetamine earlier that day. Luna stated to 1 U.S.S.G. 3B1.2. See United States v. Posasa-Rios, 158 F.3d 832, 880 (5th Cir. 1998). 2 United States v. Villanueva, 408 F.3d 193, 20304 (5th Cir. 2005) (quoting 3B1.2, cmt. n. 3(A)). 4 3 Id. at 204 (internal quotation marks and citation omitted). See id. at 203. Id. 5 6 2 Case: 09-11085 Document: 00511174169 Page: 3 No. 09-11085 Date Filed: 07/15/2010 in v e s t ig a t o r s that he left this pound of methamphetamine in Marquez's p o s s e s s io n prior to the transfer. The district court's finding that Marquez's role in the offense did not warrant an adjustment under 3B1.2 was plausible in lig h t of the record as a whole and, thus, not clearly erroneous.7 M a r q u e z alternatively contends that his sentence was substantively u n r e a s o n a b le due to the district court's refusal to grant a downward variance d e s p it e his limited role in the drug trafficking activities in this case. Because M a r q u e z objected to his sentence as unreasonable in the district court, this a r g u m e n t has been preserved for appeal.8 Marquez's sentence is presumed r e a s o n a b le because it was within his guidelines range,9 and he has not shown s u ffic ie n t reason for this court to disturb that presumption. A F F IR M E D . 7 See id., 408 F.3d at 20304. See United States v. Peltier, 505 F.3d 389, 39091 (5th Cir. 2007). See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). 8 9 3

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