United States v. Gonzalez ( 2021 )

Case: 20-40163 Document: 00515891653 Page: 1 Date Filed: 06/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 8, 2021
No. 20-40163
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Edson Roman Gonzalez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-78-3
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Edson Roman Gonzalez appeals the 170-month, within-guidelines
range sentence imposed upon his guilty plea to conspiracy to possess with
intent to distribute 500 grams or more of methamphetamine. Gonzalez
contends that (1) the district court erred by failing to apply a mitigating role
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40163 Document: 00515891653 Page: 2 Date Filed: 06/08/2021
No. 20-40163
adjustment, (2) his sentence is substantively unreasonable because it creates
an unwarranted disparity with a similarly situated codefendant, and (3) the
district court erred by applying an importation enhancement. We affirm.
Gonzalez fails to show that the district court’s finding that he was not
substantially less culpable than the average participant in the drug trafficking
conspiracy was not plausible in light of the record. See U.S.S.G. § 3B1.2
& comment. (n.3(A)); United States v. Castro, 843 F.3d 608, 613 (5th Cir.
2016); United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). He makes
no showing that his actions of siphoning liquid methamphetamine from a
transport vehicle to barrels for conversion into solid product and procuring
supplies needed to perform the conversion were “at best . . . peripheral to the
advancement of” the goals of the drug distribution conspiracy. Castro, 843
F.3d at 613-14 (internal quotation marks and citation omitted). That he may
have “do[ne] less” than some other participants does not alone warrant a
mitigating role adjustment. United States v. Miranda, 248 F.3d 434, 446 (5th
Cir. 2001).
Nor does Gonzalez show that the disparity between his sentence and
the 120-month sentence received by his codefendant Delgado was
unwarranted. See 18 U.S.C. § 3553(a)(6). Gonzalez and Delgado did not
engage in “similar conduct,” id.; Delgado was a mere “gopher” tasked only
with confirming the delivery of liquid methamphetamine. The mere
disparity between Gonzalez’s and Delgado’s sentences does not, without
more, show that the district court abused its discretion or that Gonzalez’s
sentence is substantively unreasonable. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009); United States v. Campos-Maldonado, 531 F.3d 337,
339 (5th Cir. 2008); United States v. Lindell, 881 F.2d 1313, 1324 (5th Cir.
1989).
2
Case: 20-40163 Document: 00515891653 Page: 3 Date Filed: 06/08/2021
No. 20-40163
Lastly, Gonzalez fails to show error in the district court’s application
of an importation enhancement. See U.S.S.G. § 2D1.1(b)(5). First, the
district court did not err in finding that Gonzalez was not subject to a
mitigating role adjustment so as to make § 2D1.1(b)(5) inapplicable. See id.
Second, we have previously rejected the argument that § 2D1.1(b)(5)
requires a showing of scienter as to the imported nature of
methamphetamine. See United States v. Serfass, 684 F.3d 548, 550-54 (5th
Cir. 2012).
The judgment is AFFIRMED.
3