USA v. Job Ortuno-Garcia

Filing

UNPUBLISHED OPINION FILED. [10-40055 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/09/2010 for Appellant Job Ortuno-Garcia [10-40055]

USA v. Job Ortuno-Garcia

Doc. 0

Case: 10-40055

Document: 00511266980

Page: 1

Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40055 S u m m a r y Calendar October 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. J O B ORTUNO-GARCIA, D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:09-CR-765-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* J o b Ortuno-Garcia was convicted after pleading guilty to conspiracy to t r a n s p o r t an alien within the country, placing the life of another in jeopardy. Ortuno-Garcia argued that he should receive a four-level reduction to his offense le v e l because he was a minimal participant in the conspiracy, serving merely as a lookout on one occasion. The district court denied Ortuno-Garcia's request for a minimal role reduction but granted him a two-level reduction for his minor role in the offense. Ortuno-Garcia argues that the district court clearly erred and
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40055

Document: 00511266980 Page: 2 No. 10-40055

Date Filed: 10/19/2010

t h a t he was entitled to a minimal role reduction because he was plainly among t h e least culpable involved in the conspiracy and had no knowledge of the scope o f the conspiracy or the actions of other participants therein. The district court's d e n ia l of a reduction for a mitigating role is a factual determination that is r e v ie w e d for clear error. United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2 0 0 5 ). U .S .S .G . § 3B1.2 provides for a four-level reduction in a defendant's offense l e v e l if the defendant was a "minimal" participant in a concerted criminal a c t iv it y and a two-level reduction in his offense level if he was a "minor" p a r tic ip a n t . U.S.S.G. § 3B1.2. A minimal participant adjustment is appropriate fo r a defendant who is "plainly among the least culpable of those involved in the c o n d u c t of a group," and a minor participant adjustment is appropriate for a d e fe n d a n t "who is less culpable than most other participants, but whose role c o u ld not be described as minimal." U.S.S.G. § 3B1.2 cmt. nn.4-5. The

S e n te n c in g Commission intends for district courts to award the minimal p a r tic ip a n t adjustment infrequently. Id. at n.4; Rosier v. United States Parole C o m m 'n , 109 F.3d 212, 214 (5th Cir. 1997). A lt h o u g h Ortuno-Garcia acted as a lookout for the alien smuggling o p e r a t io n , we cannot say that the district court clearly erred when it found that h is role was minor rather than minimal. See Villanueva, 408 F.3d at 203-04. It is plausible in light of the record as a whole that Ortuno-Garcia's actions as a p a id lookout were less culpable than most other participants in the conspiracy b u t were not so peripheral to the advancement of the goals of the conspiracy to q u a lify him for the minimal role adjustment. The judgment of the district court is AFFIRMED.

2