United States v. Garcia-Gloria ( 2022 )

Case: 21-40729 Document: 00516373341 Page: 1 Date Filed: 06/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 28, 2022
No. 21-40729 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Alberto Garcia-Gloria,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:21-CR-812-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Luis Alberto Garcia-Gloria was sentenced to 168 months of
imprisonment after pleading guilty to conspiracy to possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846. On appeal, he contends that the district court clearly
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40729 Document: 00516373341 Page: 2 Date Filed: 06/28/2022
No. 21-40729
erred in determining that he was not entitled to a minor or minimal
participant reduction under U.S.S.G. § 3B1.2.
The determination whether a defendant is entitled to a mitigating role
adjustment under § 3B1.2 is a factual determination that we review for clear
error. United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016).
There is no clear error if a factual finding is plausible in light of the record as
a whole. United States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016). A
defendant is entitled to a mitigating role adjustment only if he shows by a
preponderance of the evidence: “(1) the culpability of the average participant
in the criminal activity; and (2) that [he] was substantially less culpable than
that participant.” Id. at 613 (footnote omitted).
While Garcia-Gloria contends that he played a minor or minimal role
in the conspiracy, a defendant is not entitled to a mitigating role reduction
merely because he was responsible for only transporting drugs. See id. at 612.
The district court found that Garcia-Gloria was at least an average participant
based on statements from a co-conspirator indicating that Garcia-Gloria
delivered speaker boxes containing drugs on multiple occasions. Because the
determination that he was at least an average participant in the conspiracy is
plausible in light of the record as a whole, the district court did not clearly err
in determining that Garcia-Gloria failed to establish that he was entitled to a
minor or minimal participant reduction under § 3B1.2. See id.
Accordingly, the judgment of the district is AFFIRMED.
2