United States v. Villegas-Escalante ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 2, 2007
Charles R. Fulbruge III
Clerk
No. 06-50465
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINDA VICTORIA VILLEGAS-ESCALANTE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:05-CR-2556-ALL)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pursuant to her guilty plea, Linda Victoria Villegas-Escalante
was convicted of one count of importing a quantity of marijuana, in
violation of 21 U.S.C. §§ 952 and 960, and one count of possessing
with intent to distribute a quantity of marijuana, in violation of
21 U.S.C. § 841. She appeals her concurrent 33-month sentences.
Notwithstanding the Sentencing Guidelines’ now being advisory,
a district court must still determine the guideline range. E.g.,
United States v. Charon, 442 F.3d 881, 886-87 (5th Cir.), cert.
*
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this opinion should not be published and is not precedent except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.
denied, 127 S. Ct. 260 (2006). Its interpretation and application
of those Guidelines is reviewed de novo; its factual
determinations, only for clear error. Id.Focusing on a portion of the probation officer’s responses to
her objections to the Modified Presentence Report, Villegas
contends the district court misapplied Guidelines § 3B1.2 by
determining she was ineligible for a minor-role adjustment because
she was the only defendant. We decline to disturb that ruling on
this basis because the record does not show the adjustment was
denied for this reason.
Villegas next contends the district court clearly erred in
determining she was not a minor participant. She maintains her only
activity in the offense was to drive a vehicle a short distance
into the United States and to park it. Villegas asserts: she was
recruited and was to be paid by another person who was higher up in
the organization; and other persons were to distribute the
marijuana in the United States.
The determination of a defendant’s role in the offense is a
factual finding, reviewed only for clear error. United States v.
Deavours, 219 F.3d 400, 404 (5th Cir. 2000). To be eligible for a
minor-role adjustment, a defendant “must have been peripheral to
the advancement of the illicit activity”. United States v.
Miranda, 248 F.3d 434, 447 (5th Cir. 2001).
2
In the light of Villegas’ actual involvement in importing and
possessing a distributable quantity of marijuana, the district
court did not clearly err in denying a minor-role adjustment. See
United States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995); United
States v. Gallegos, 868 F.2d 711, 712-13 (5th Cir. 1989).
AFFIRMED
3