USA v. Jorge Bolano

Filing

UNPUBLISHED OPINION FILED. [10-40181 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 01/04/2011 for Appellant Jorge Bolanos [10-40181]

USA v. Jorge Bolano ase: 10-40181 C

Document: 00511321402 Page: 1 Date Filed: 12/14/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40181 S u m m a r y Calendar December 14, 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 R G E BOLANOS, 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. 7:09-CR-1016-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* J o r g e Bolanos pleaded guilty to one count of importing less than 50 k ilo g r a m s of marijuana. The district court imposed a sentence of 37 months of im p r is o n m e n t. B o la n o s contends that the district court erred by failing to articulate fa c t u a l findings at sentencing to support its denial of a role adjustment under U .S .S .G . § 3B1.2. The requirement that the district court articulate a sufficient fa c t u a l basis for the denial of a minor role adjustment can be satisfied through
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

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Case: 10-40181 Document: 00511321402 Page: 2 Date Filed: 12/14/2010 No. 10-40181 im p lic it findings, such as when the district court adopts the presentence report. See United States v. Gallardo-Trapero, 185 F.3d 307, 324 (5th Cir. 1999). Because the district court adopted the presentence report in this matter, there w a s no error. See id. A s an alternative ground for relief, Bolanos argues that a minor role a d ju s tm e n t was warranted because he was less culpable than other participants in the offense. He maintains that he was eligible for the reduction because he w a s merely a courier who was controlled by others involved in the drug s m u g g lin g operation. W h e t h e r Bolanos was a minor participant is a factual determination that is reviewed for clear error. See United States v. Villanueva, 408 F.3d 193, 203 (5 t h Cir. 2005). There is no clear error if the factual finding is "plausible in light o f the record read as a whole." Id. The district court's refusal to grant a § 3B1.2 r e d u c t io n is entitled to great deference. United States v. Devine, 934 F.2d 1325, 1 3 4 0 (5th Cir. 1991). H e r e , Bolanos was convicted of a single act of importing marijuana into the U n ite d States, and his sentence was based solely on the marijuana seized from t h e vehicle he was driving. "[W]hen a sentence is based on an activity in which t h e defendant was actually involved, § 3B1.2 does not require a reduction in the b a s e offense level even though the defendant's activity in a larger conspiracy m a y have been minor or minimal." United States v. Garcia, 242 F.3d 593, 599 (5 t h Cir. 2001). Because Bolanos's role was co-extensive with the conduct for w h ic h he was held accountable, he was not entitled to a minor role reduction e v e n if his role may have been less than that of others in the larger drug s m u g g lin g operation. See id. at 598-99. T h e judgment of the district court is AFFIRMED.

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