United States v. Gutierrez ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 12, 2009
No. 08-40638
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CATARINO GUTIERREZ, JR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-380-6
Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
Catarino Gutierrez, Jr., appeals his sentence following his guilty plea
conviction of conspiracy to possess with intent to distribute more than 1,000
kilograms of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A).
Gutierrez argues that the district court clearly erred in denying him a two-level
minor role adjustment under U.S.S.G. § 3B1.2. Gutierrez contends that the
adjustment was warranted because he did not own the ranch where the drugs
were stored or the trucks which were used to transport the drugs.
*
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should not be published and is not precedent except under the limited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.
No. 08-40638
Whether a defendant is a minor or minimal participant is a factual
determination that is reviewed for clear error. United States v. Villanueva,
408 F.3d 193, 203 & n.9 (5th Cir. 2005). Pursuant to § 3B1.2, a district court
may decrease a defendant’s offense level by two levels if the defendant was a
minor participant. An adjustment for a minor role applies to a defendant “who
is less culpable than most other participants, but whose role could not be
described as minimal.” § 3B1.2, comment. (n.5).
The record reflects that Gutierrez packaged, loaded, and transported a
significant quantity of marijuana through several states. Gutierrez’s role as a
packer and transporter of large quantities of marijuana was neither minor nor
minimal. See United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989). In
addition, the fact that Gutierrez transported drugs and drug proceeds through
several states further establishes that his role was neither minor nor minimal.
See United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995).
Thus, the district court did not clearly err in denying Gutierrez a minor
role adjustment. See United States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995);
United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).
AFFIRMED.
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