United States v. Alexander Salazar ( 2019 )

Case: 18-10652 Document: 00514971086 Page: 1 Date Filed: 05/24/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-10652 May 24, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALEXANDER LEE SALAZAR,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-265-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Alexander Lee Salazar appeals his 220-month sentence imposed
following his guilty plea to possession with intent to distribute a controlled
substance. Salazar argues that the district court clearly erred in failing to
reduce his offense level for a mitigating role in the criminal activity. “Whether
[a defendant] was a minor or minimal participant” under U.S.S.G. § 3B1.2 “is
a factual determination that [this court] review[s] for clear error.” United
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 18-10652
States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (internal quotation
marks and citation omitted). “A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.” Id. (internal quotation marks
and citation omitted). The defendant has the burden of demonstrating his
entitlement to a minor or minimal role adjustment. United States v. Castro,
843 F.3d 608, 612 (5th Cir. 2016).
The evidence in the record reflects that Salazar admitted that on four
occasions he illegally transported significant amounts of methamphetamine
into different areas of the United States for distribution. The evidence also
showed that he intended to continue to engage in the activity and that he would
be obtaining methamphetamine from the initial source of the drugs. While
Salazar may not have been an organizer or a decisionmaker with respect to the
criminal activity, based on the totality of the circumstances, the district court’s
determination that Salazar failed to demonstrate that he was entitled to a
reduction of his offense level for a mitigating role was plausible and did not
constitute clear error. See U.S.S.G. § 3B1.2, comment. (n.3(C)); United States
v. Bello-Sanchez, 872 F.3d 260, 264-65 (5th Cir. 2017); Gomez-Valle, 828 F.3d
at 327.
Next, Salazar argues that the district court clearly erred in failing to
reduce his offense level for the acceptance of responsibility. He contends that
he pleaded guilty in a timely manner, he did not falsely deny relevant conduct,
and he provided compelling explanations for most of his violations of his
pretrial release.
The district court’s decision to deny a reduction for acceptance of
responsibility will be affirmed “unless it is without foundation, a standard of
review more deferential than the clearly erroneous standard.” United States
v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (internal quotation marks
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No. 18-10652
and citation omitted). While entering a guilty plea and truthfully admitting
criminal conduct “constitute significant evidence of acceptance of
responsibility,” such “evidence may be outweighed by conduct of the defendant
that is inconsistent with such acceptance of responsibility.” U.S.S.G. § 3E1.1,
comment. (n.3). “The district court may properly deny a reduction for
acceptance of responsibility for failure to refrain from criminal conduct while
on pretrial release.” United States v. Rickett, 89 F.3d 224, 227 (5th Cir. 1996).
Salazar tested positive for the use of methamphetamine in violation of
the conditions of his pretrial release. The district court’s decision to deny
Salazar a reduction of his offense level for the acceptance of responsibility was
not without foundation and was not clear error. See Juarez-Duarte, 513 F.3d
at 211. Salazar’s sentence is AFFIRMED.
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