United States v. Ochoa de Villagomez , 297 F. App'x 303 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 17, 2008
No. 07-40875
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SONIA M OCHOA DE VILLAGOMEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-CR-10-1
Before GARWOOD, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Sonia Ochoa De Villagomez (Ochoa) appeals the sentence imposed
following her guilty plea conviction for importing approximately 37 kilograms of
cocaine. Ochoa argues that the district court abused its discretion by not
granting her a minor role adjustment because her role in the offense was that
of merely driving her vehicle across the border. She also argues that the district
court should have determined her role solely with respect to “this particular
narcotics transportation,” not her overall relevant conduct.
*
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should not be published and is not precedent except under the limited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. 07-40875
This court reviews a district court’s interpretation of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.
Jaurez-Duarte, 513 F.3d 204, 208 (5th Cir.), cert. denied, 128 S. Ct. 2452 (2008).
“There is no clear error if the district court’s finding is plausible in light of the
record as a whole.” United States v. Harms, 442 F.3d 367, 378 (5th Cir. 2006),
cert. denied, 127 S. Ct. 2875 (2007).
“The determination of a defendant’s role in the offense is to be made on the
basis of all conduct within the scope of § 1B1.3 (Relevant Conduct) . . . and not
solely on the basis of elements and acts cited in the count of conviction.” Ch. 3,
Pt. D, intro. comment. Moreover, although a reduction for being a minor
participant is available for a defendant who performed a limited function in a
concerted criminal activity but was held accountable only for the conduct in
which he was personally involved, the defendant must have been “substantially
less culpable than the average participant.” United States v. Villanueva, 408
F.3d 193, 203 & n.9 (5th Cir. 2005) (citing U.S.S.G. § 3B1.2, comment. (n.3(A)).
Ochoa was the driver, sole occupant and owner of the vehicle in which the
cocaine was present in a false compartment in the gas tank.
The defendant bears the burden of proving entitlement to a minor role
adjustment. United States v. DeJesus-Bates, 410 F.3d 154, 163 (5th Cir. 2005).
See also United States v. Atanda, 60 F.3d 196, 198-99 (5th Cir. 1995). One may
be courier in a drug offense without being substantially less culpable than the
average participant. United States v. Buenrostro, 868 F.3d 135, 138 (5th Cir.
1989).
The record does not support Ochoa’s argument that the district court
denied her the minor role adjustment based on an erroneous assessment of her
participation in a larger unidentified conspiracy. Rather, the district court
merely failed to accept Ochoa’s self-serving unsworn claim that she was only a
one-time courier. Further, because Ochoa, although she made an unsworn
statement, did not present any evidence rebutting the facts contained in the
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No. 07-40875
PSR, the district court was free to adopt them. See United States v. Davis, 226
F.3d 346, 360 (5th Cir. 2000) (district court may adopt facts contained in the
PSR if they have an adequate evidentiary basis and the defendant does not
present rebuttal evidence).
Ochoa also argues that the district court erred when it failed to grant her
a downward departure for a serious medical condition. This court lacks
jurisdiction to review the district court’s denial of a downward departure unless
the district court mistakenly believed that it lacked the authority to depart
under the Guidelines. United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006).
The record does not indicate that the district court believed that it lacked the
authority to depart. Accordingly, this court lacks jurisdiction to review this
issue.
AFFIRMED.
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