United States v. Salim Balouch ( 2020 )

Case: 19-20592 Document: 00515488651 Page: 1 Date Filed: 07/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-20592 July 14, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SALIM OMAR BALOUCH,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-429-7
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Salim Omar Balouch appeals the sentence imposed following his
conviction for conspiring to possess with intent to distribute one kilogram or
more of a mixture or substance containing heroin. He raises two challenges to
the district court’s application of the Sentencing Guidelines.
First, Balouch argues that the district court erred in assessing the three-
level role adjustment of U.S.S.G. § 3B1.1(b), based on a finding that he acted
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 19-20592
as a manager or supervisor in the conspiracy. The record evidence shows that
the conspiracy involved five or more participants, including Balouch, the
indicted conspirators who were involved in the distribution of bulk heroin
obtained from Balouch, and the unindicted conspirators who assisted with the
smuggling activity. See United States v. Cooper, 274 F.3d 230, 247 (5th
Cir. 2001); § 3B1.1, comment. (n.1). The district court’s assessment of the
§ 3B1.1(b) adjustment is plausible in light of the record and does not constitute
clear error, given that Balouch conceded that he managed one of the other
members of the conspiracy and in light of the findings that he was the source
of the bulk heroin, had authority to set its price and the minimum quantity he
would ship, engaged in discussions concerning smuggling routes, and offered
to locate alternative smugglers to assist with trafficking if one failed. See
United States v. Akins, 746 F.3d 590, 609-10 (5th Cir. 2014); United States v.
Palomo, 998 F.2d 253, 257-58 (5th Cir. 1993).
Next, Balouch challenges the district court’s drug quantity
determination under U.S.S.G. § 2D1.1(c)(1), arguing that he should not have
been held accountable for 61 kilograms distributed to one co-defendant and 36
kilograms distributed to another. It was plausible for the district court to
include the 61-kilogram figure in determining the drug amount attributable to
Balouch because its distribution involved a common accomplice (a co-
defendant), a common purpose (trafficking bulk heroin from Afghanistan), and
common modes of operation (shipping the bulk heroin to Tanzania and using a
human hostage to secure payment). See United States v. Nava, 957 F.3d 581,
587-88 (5th Cir. 2020). It was likewise plausible for the court to include the
36-kilogram amount. See id. However, even if the court erred in including the
36-kilogram amount, Balouch’s base offense level remains unchanged because
he does not challenge an additional 40.46 kilograms of heroin for which he was
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No. 19-20592
held accountable, thus rendering any error harmless. See § 2D1.1(c); United
States v. Solis, 299 F.3d 420, 462 (5th Cir. 2002).
AFFIRMED.
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