USA v. Jose Benavides-Cira
UNPUBLISHED OPINION FILED. [16-40792 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 06/07/2017 for Appellant Jose Abraham Benavides-Cira [16-40792]
Date Filed: 05/17/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
May 17, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
JOSE ABRAHAM BENAVIDES-CIRA,
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-281-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jose Abraham Benavides-Cira pleaded guilty to conspiracy to export a
defense article without obtaining a license or written authorization and
possession of a firearm with a removed, obliterated, or altered serial number;
he was sentenced within the guidelines range to a total of 135 months of
imprisonment. He now appeals his sentence, arguing that the district court
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 05/17/2017
clearly erred by refusing to grant him a mitigating role adjustment under
U.S.S.G. § 3B1.2.
Benavides-Cira’s notion that he was a minor or minimal participant
because he was he was “merely a negotiator,” “middleman,” and “facilitator” in
the criminal activity is unavailing. Benavides-Cira was actively involved in
finding suppliers for the illicit firearms and in the actual or attempted
negotiations, delivery, and sale of eight firearms to undercover agents over a
four-month period. As part of those negotiations, he communicated directly
conversations, and text messages, and he was present for the sale and transfer
of three firearms and the attempted sale of five firearms that preceded his
arrest in this case.
Benavides-Cira had the burden of proving by a preponderance of the
evidence that he was “substantially less culpable than the average participant
in the criminal activity.” § 3B1.2, comment. (n.3(A)); see United States v.
Castro, 843 F.3d 608, 613 (5th Cir. 2016).
The district court’s implicit
conclusion that he failed to meet this burden is plausible in light of the record
as a whole. See United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir.
2016). Accordingly, the district court did not clearly err by denying BenavidesCira’s request for a mitigating role adjustment. See id.
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