United States v. Jesus Romero ( 2013 )

Case: 12-40536 Document: 00512201435 Page: 1 Date Filed: 04/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 8, 2013
No. 12-40536
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESUS ROMERO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-291-2
Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jesus Romero appeals the 235-month sentence of imprisonment imposed
on his guilty plea conviction for conspiracy to possess with intent to distribute
500 grams or more of methamphetamine. He asserts that the district court
clearly erred when it declined to assign him a mitigating role adjustment in his
offense level. See U.S.S.G. § 3B1.2.
Whether a defendant had a mitigating role in the offense of conviction is
a factual determination that we review for clear error. United States v.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-40536 Document: 00512201435 Page: 2 Date Filed: 04/08/2013
No. 12-40536
Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005). A defendant’s participation
in an offense is not evaluated with reference “to the entire criminal enterprise
of which [the defendant was] a part”; instead, it is evaluated in relation to the
conduct for which the defendant is being held accountable. United States v.
Garcia, 242 F.3d 593, 598, 598-99 (5th Cir. 2001). Section 3B1.2 applies only
when a defendant is substantially less culpable than the average participant.
Villanueva, 408 F.3d at 203-04. It is the defendant’s burden to show that he
merits a § 3B1.2 adjustment. Garcia, 242 F.3d at 597. In making factual
determinations with regard to a sentence, a district court may rely on any
information contained in the presentence report that has any indicium of
reliability. United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992).
The PSR showed that Romero and his co-conspirator delivered to a
confidential informant a black suitcase containing the methamphetamine and
that Romero later met with the confidential informant to discuss transporting
the methamphetamine to Atlanta. Although it made no explicit credibility
determinations, the district court adopted the PSR over Romero’s objection,
implicitly rejecting Romero’s denial at rearraignment of ever touching any
narcotics or of doing more than making telephone calls. Cf. United States v.
Richardson, 998 F.2d 1014 (5th Cir. 1993) (unpublished); see also 5TH CIR.
R. 47.5.2. The district court was not, of course, required to accept self-serving
declarations by Romero, made with the purpose of reducing his sentence, about
the circumstances of his crime. See United States v. Buenrostro, 868 F.2d 135,
138 (5th Cir. 1989).
Romero’s participation was essential, and not merely peripheral, to the
advancement of the offense, see Villanueva, 408 F.3d at 204, and was
“coextensive with the conduct for which he was held accountable.” Garcia, 242
F.3d at 598-99. Consequently, we find no clear error in the denial of Romero’s
request for a mitigating role adjustment. See Villanueva, 408 F.3d at 203 & n.9.
AFFIRMED.
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