United States v. Aguilar ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 19, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40732
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO AGUILAR, also known as
David Fernandez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-451-1
Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Fernando Aguilar pleaded guilty to one count of possession
with intent to distribute ninety-one kilograms of marijuana and was
sentenced to fifty-seven months of imprisonment and two years of
supervised release. Aguilar appeals his sentence, asserting that
the district court clearly erred when it denied a reduction
*
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opinion should not be published and is not precedent except under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.
pursuant to U.S.S.G. § 3B1.2(b) for a minor role in the offense.
Aguilar contends that his role was that of a mere courier.
We review the finding on a defendant’s role in an offense for
clear error. United States v. Deavours, 219 F.3d 400, 404 (5th
Cir. 2000). A two-level adjustment for a minor role applies in the
case of a defendant “who is less culpable than most other
participants, but whose role could not be described as minimal.”
U.S.S.G. § 3B1.2, comment. (n.5). The defendant bears the burden
of proving that he was a minor participant in the offense. United
States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001).
Aguilar’s admissions demonstrate that he acted in a greater
capacity than a mere courier. Aguilar did not demonstrate that the
information in the presentence report was unreliable. United
States v. Young, 981 F.2d 180, 185 (5th Cir. 1993). Further,
holding only a courier-type role does not automatically entitle a
defendant to the U.S.S.G. § 3B1.2(b) reduction for a minor
participant. See United States v. Rojas, 868 F.2d 1409, 1410 (5th
Cir. 1989); United States v. Gallegos, 868 F.2d 711, 713 (5th Cir.
1989). The district court’s implicit finding that Aguilar was not
entitled to the U.S.S.G. § 3B1.2(b) reduction is plausible in light
of the record viewed as a whole. Burton v. United States, 237 F.3d
490, 500 (5th Cir. 2000).
Accordingly, the judgment of conviction and sentence is
AFFIRMED. This action is REMANDED for the sole purpose of allowing
2
the district court to correct the written judgment to reflect that
the term of supervised release is two years.
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT.
3