United States v. Aguirre-Cavazos ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40651
Summary Calendar
UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
ROLANDO AGUIRRE-CAVAZOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. CR-97-M-314-03
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July 11, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
The defendant, Rolando Aguirre-Cavazos (“Aguirre”), pleaded
guilty to conspiracy to possess with intent to distribute
marijuana. In accordance with a plea agreement, the district
court sentenced him to 18 months’ imprisonment, the lowest
sentence within the guidelines range. Aguirre appeals the
district court’s denial of a mitigating-role reduction under
U.S.S.G. § 3B1.2, contending that he was a minor or minimal
participant and should have been imprisoned for 12 rather than 18
months.
*
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that this opinion should not be published and is not precedent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. 98-40651
-2-
In his objection to the Presentence Report (“PSR”), Aguirre
asserted that he should receive at least a two-point reduction as
a minor participant. He contends that his role and that of
codefendant Felix Garza-Garza (“Garza”) were identical so that it
was clear error to refuse him a mitigating role reduction when
Garza received a four-point reduction for being a minimal
participant. Aguirre also argues that codefendant Claudia
Garcia-Gonzalez was “higher up the chain of the smuggling ring”
than was Aguirre and that she “was paid twice as much for her
participation” as was Aguirre.
This court reviews the sentencing court’s application of the
sentencing guidelines de novo and accepts the sentencing court’s
findings of fact unless they are clearly erroneous. United
States v. Gallardo-Trapero, 185 F.3d 307, 323 (5th Cir. 1999),
cert. denied, 120 S. Ct. 961 (2000). The sentencing court’s
determination that a defendant did not play a minor or minimal
role in the offense is reviewed for clear error. United States
v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994). A factual finding
is not clearly erroneous if it is plausible in light of the
record read as a whole. United States v. Alford, 142 F.3d 825,
831 (5th Cir. 1998), cert. denied, 525 U.S. 1003 (1998). The
defendant has the burden of proving his mitigating role by a
preponderance of the evidence. Zuniga, 18 F.3d at 1261.
A disparity of sentences among codefendants is not grounds
for reversal. United States v. Castillo-Roman, 774 F.2d 1280,
1283 (5th Cir.1985) (defendant cannot rely upon sentence received
by other defendant as yardstick for sentence he should receive).
No. 98-40651
-3-
The fact that a defendant is a “mere” drug courier does not alone
justify a mitigating-role reduction. United States v.
Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). Neither does the
fact that other codefendants were more culpable, because each
defendant must be assessed separately. United States v. Atanda,
60 F.3d 196, 198, n.1 (5th Cir. 1995); United States v. Thomas,
963 F.2d 63, 65 (5th Cir. 1992).
Although Aguirre has asserted that the Government agreed
that he was a minor or minimal participant, neither the PSR nor
the plea agreement indicate that Aguirre was entitled to a
mitigating-role reduction. No agreement to reduce the offense
level was consummated, and the Government did not seek an
offense-level reduction or move for a downward departure.
Aguirre produced no evidence at the sentencing hearing that would
support his request for a mitigating-role reduction. He thus
failed to carry his burden of proving by a preponderance of the
evidence that he was entitled to a mitigating-role reduction.
The district court’s decision to deny the request for a
mitigating-role reduction was not clearly erroneous. The
judgment of the district court is AFFIRMED.