United States v. Rivera ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 19, 2008
No. 07-50373
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LORENA RIVERA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-596-3
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Lorena Rivera pleaded guilty to conspiring to possess with the intent to
distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C.
§§ 841, 846. The district court sentenced her to 41 months of imprisonment and
three years of supervised release.
Rivera argues that the district court clearly erred in reducing her base
offense level by two levels for her minor participation in the offense, rather than
by four or three levels for her minimal or less than minor participation in the
*
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should not be published and is not precedent except under the limited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. 07-50373
offense. The advisory Sentencing Guidelines provide for a reduction in the base
offense level of a “minor” or a “minimal” participant and a participant who falls
between a “minor” and “minimal” participant. U.S.S.G. § 3B1.2. To merit a
reduction under § 3B1.2, the defendant must have been “substantially less
culpable” than the average participant. § 3B1.2, comment. (n.3(A)). The role of
a defendant in the offense is a factual determination that we review for clear
error. United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005).
The facts show that Rivera packaged the marijuana, loaded the marijuana,
knew that she was participating in the transportation of marijuana, and assisted
in the transportation of a large quantity of marijuana. Rivera has not shown
that her participation in the offense was “peripheral to the advancement of the
illicit activity” or that it was not “critical to the offense.” Villanueva, 408 F.3d
at 203 & n.9; United States v. Becerra, 155 F.3d 740, 757 (5th Cir. 1998); United
States v. Atanda, 60 F.3d 196, 198 (5th Cir. 1995). The district court did not
clearly err in reducing Rivera’s offense level by two levels for her minor
participation in the offense, rather than by four or three levels for a minimal or
less than minor participation in the offense. Additionally, Rivera’s properly
calculated, within guidelines sentence is entitled to a presumption of
reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006);
Gall v. United States, 128 S. Ct. 586, 597 (2007).
Accordingly, the judgment of the district court is AFFIRMED.
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