United States v. Villalobos ( 2022 )

Case: 21-50893 Document: 00516378513 Page: 1 Date Filed: 06/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 30, 2022
No. 21-50893
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Joshua David Villalobos,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:20-CR-167-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Joshua David Villalobos appeals the sentence imposed after he
pleaded guilty to attempting to manufacture methamphetamine. He argues
that the district court miscalculated his advisory guidelines range by denying
a mitigating-role adjustment under U.S.S.G. § 3B1.2 and by applying an
*
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opinion should not be published and is not precedent except under the limited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: 21-50893 Document: 00516378513 Page: 2 Date Filed: 06/30/2022
No. 21-50893
offense-level enhancement under U.S.S.G. § 2D1.1(b)(14)(A). Because
Villalobos preserved his arguments by raising them in the district court, we
review the district court’s interpretation and application of the Guidelines de
novo and the court’s factual findings for clear error. See United States v.
Odom, 694 F.3d 544, 546 (5th Cir. 2012).
Under § 3B1.2, a downward adjustment of two to four levels is
available to a defendant “who plays a part in committing the offense that
makes him substantially less culpable than the average participant in the
criminal activity.” § 3B1.2, cmt. 3(A). It is the defendant’s burden to prove
by a preponderance of the evidence that such an adjustment is warranted. See
United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). To
carry this burden, the defendant must show “(1) the culpability of the average
participant in the criminal activity; and (2) that she was substantially less
culpable than that participant.” United States v. Castro, 843 F.3d 608, 613
(5th Cir. 2016) (footnote omitted). Whether a defendant is entitled to a
§ 3B1.2 adjustment is a factual determination reviewed for clear error, and a
factual finding “is not clearly erroneous if it is plausible in light of the record
read as a whole.” United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir.
2016) (internal quotation marks and citation omitted).
On this record, the finding that Villalobos failed to show entitlement
to a mitigating-role adjustment is plausible and thus not clearly erroneous.
See id. Even if Villalobos is correct that some of the factors identified in the
commentary to § 3B1.2 favored an adjustment, these “are only factors,”
Torres-Hernandez, 843 F.3d at 209, and “how those factors are weighed
remains within the sentencing court’s discretion,” id. at 210. Villalobos also
contends that the district court erred by placing undue weight on the
“essential or indispensable” nature of his role in the offense. § 3B1.2, cmt.
3(C). We have explained, however, that “error lies only where the
defendant’s ‘integral role’ is treated as a per se bar to mitigating-role
2
Case: 21-50893 Document: 00516378513 Page: 3 Date Filed: 06/30/2022
No. 21-50893
adjustment and not where it is treated as a factor, even a heavily weighted
one, in a broader calculus,” as here. United States v. Bello-Sanchez, 872 F.3d
260, 264 (5th Cir. 2017). We therefore reject Villalobos’s contentions under
§ 3B1.2.
Villalobos fares better under § 2D1.1(b)(14)(A). Drug offenders may
receive up to a two-level enhancement “[i]f the offense involved (i) an
unlawful discharge, emission, or release into the environment of a hazardous
or toxic substance; or (ii) the unlawful transportation, treatment, storage, or
disposal of a hazardous waste.” § 2D1.1(b)(14)(A). Based on the
commentary to this provision and this court’s decision in United States v.
Sauseda, 596 F.3d 279 (5th Cir. 2010), the Government concedes that it failed
to make a showing sufficient to support the enhancement. Additionally, the
Government concedes it is unable to show that application of the
§ 2D1.1(b)(14)(A) enhancement was harmless.
We are not bound by these concessions, see United States v. Hope, 545
F.3d 293, 295 (5th Cir. 2008), but may choose to accept them, see United
States v. Courtney, 979 F.2d 45, 51 (5th Cir. 1992). Having considered the
record and the parties’ arguments, we accept the Government’s concessions.
Accordingly, we VACATE Villalobos’s sentence and REMAND for
resentencing in accordance with this opinion. The district court is free, of
course, to impose whatever sentence it thinks is appropriate under 18 U.S.C.
§ 3553(a). The conviction is AFFIRMED.
3