United States v. Garces ( 2022 )

Case: 20-40835 Document: 00516159779 Page: 1 Date Filed: 01/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 10, 2022
No. 20-40835
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Irvin Garces,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 7:19-CR-1205-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Irvin Garces appeals his 144-month sentence for conspiracy to possess
with intent to distribute 500 grams or more of cocaine and interference with
commerce through Hobbs Act robbery by unlawfully taking controlled
substances and drug proceeds. Garces maintains that the district court erred
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-40835 Document: 00516159779 Page: 2 Date Filed: 01/10/2022
No. 20-40835
in denying him a two-level reduction in his offense level under U.S.S.G.
§ 3B1.2(b) based on its finding that he was not a minor participant in the
offense.
We review the district court’s interpretation and application of the
Guidelines de novo and its factual findings for clear error. See United States v.
Fernandez, 770 F.3d 340, 342, 345 (5th Cir. 2014). Whether a defendant was
a minor participant under § 3B1.2 is a factual determination that we review
for clear error. United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir.
2016). “A factual finding is not clearly erroneous if it is plausible in light of
the record as a whole.” United States v. Zuniga, 720 F.3d 587, 590 (5th Cir.
2013).
The record supports the district court’s determination that Garces
was not entitled to a reduction as a minor participant under § 3B1.2. This
case involved Vallucos gang members and affiliates who conducted home
invasions or carjackings to attempt to steal controlled substances or drug pro-
ceeds from 2017 to 2019. Garces was a known affiliate of Vallucos’s who
participated in two home invasions by acting as a lookout and driving the
getaway car. The home invasions involved forcible entry, the use of firearms,
verbal threats, and assaults of the victims.
Garces also participated in the conspiracy’s drug trafficking by assist-
ing in the sale of cocaine. His actions in both the home invasions and the
cocaine distribution were important to the overall conspiracy. See United
States v. Castro, 843 F.3d 608, 612–13 (5th Cir. 2016). Although this factor
alone is insufficient to deny a mitigating-role adjustment, see id., his vital or
critical role as a lookout and getaway driver in the home invasions weighs
against affording him such relief, see United States v. Bello-Sanchez, 872 F.3d
260, 265–66 (5th Cir. 2017). Garces was not entitled to a minor-role adjust-
ment just because he did less than some other participants, see United States
2
Case: 20-40835 Document: 00516159779 Page: 3 Date Filed: 01/10/2022
No. 20-40835
v. Anchundia-Espinoza, 897 F.3d 629, 634 (5th Cir. 2018), and he has not
shown that he was substantially less culpable than the average participant, see
Castro, 843 F.3d at 612–13. The district court’s finding that Garces was not
entitled to a minor-role adjustment is plausible in view of the record as a
whole and, therefore, is not clearly erroneous. See Gomez-Valle, 828 F.3d
at 327; see also Zuniga, 720 F.3d at 590.
AFFIRMED.
3