United States v. Morales ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 24, 2008
No. 06-41750
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARCO ANTONIO MORALES
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1941-7
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Marco Antonio Morales appeals his sentence following his conviction by a
jury of possession with intent to distribute more than 100 kilograms of
marijuana and aiding and abetting. Morales argues that the district court
erroneously failed to apply a minor role adjustment to his offense level under
U.S.S.G. § 3B1.2. Morales argues that the adjustment was warranted because
he was substantially less culpable than other participants in the overall
conspiracy and that his role in the single incident of drug trafficking was simply
*
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should not be published and is not precedent except under the limited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. 06-41750
to open a warehouse gate. Morales’s argument is that the sentence imposed on
him was procedurally flawed because the district court calculated incorrectly the
appropriate guidelines range. See Gall v. United States, 128 S. Ct 586, 594-95
(2007).
Whether the defendant is a minor or minimal participant is a factual
determination reviewed for clear error. United States v. Villanueva, 408 F.3d
193, 203 & n.9 (5th Cir. 2005). For purposes of § 3B1.2, a defendant’s
participation in the offense is not to be evaluated with reference to the entire
criminal enterprise of which the defendant was a part. United States v. Garcia,
242 F.3d 593, 598-99 (5th Cir. 2001). Rather, § 3B1.2 asks whether a
defendant’s involvement was minor in relation to the conduct for which he
was held accountable. Id. Section § 3B1.2 does not require a reduction in the
base offense level if a defendant’s sentence is based on an activity in which a
defendant was actually involved. United States v. Atanda, 60 F.3d 196, 199 (5th
Cir. 1995).
At trial, Morales testified that he was a supervisor for a company with a
warehouse. Morales, who had a key and security access codes for the warehouse,
opened the warehouse for the van, later found to contain marijuana, on a
Saturday, when the warehouse was unoccupied. Contrary to Morales’s assertion
that he did no more than open a gate, he provided access, by use of his key and
security codes as a company supervisor, to the warehouse for the van containing
the drugs. This access to the warehouse provided an indispensable service to the
drug-trafficking offense and was essential to its success. See United States v.
Brown, 54 F.3d 234, 241 (5th Cir. 1995); see also United States v. Buenrostro, 868
F.2d 135, 138 (5th Cir. 1989). Morales has not shown that the district court
clearly erred by not adjusting his offense level because he was a minor
participant in the offense. Morales does not assert that the sentence imposed
was not reasonable or flawed in any other way. The judgment of the district
court is AFFIRMED.
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