United States v. Garrido ( 2021 )

Case: 20-10740 Document: 00515821974 Page: 1 Date Filed: 04/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 14, 2021
No. 20-10740 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Lorensito Garrido,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-309-2
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Jose Lorensito Garrido pleaded guilty to conspiracy to possess, with
intent to distribute, 500 grams or more of a mixture or substance containing
a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846,
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-10740
841(a)(1) and (b)(1)(A). He was sentenced to, inter alia, 144-months’
imprisonment, a downward variance from the Sentencing Guidelines range.
Lorensito challenges his sentence, contending the court erred by:
denying him a mitigating-role adjustment under Guideline § 3B1.2, including
not adequately explaining the basis for denying it; imposing a two-level
enhancement for importation under Guideline § 2D1.1(b)(5); and
improperly calculating the Guidelines sentencing range.
Although post-Booker, the Sentencing Guidelines are advisory only,
the district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751- 53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de
novo; its factual findings, only for clear error. E.g. , United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Regarding the court’s denying a mitigating-role adjustment, Lorensito
asserts he is entitled it because he engaged in substantially less culpable
criminal activity than co-participant Lopez. The Guidelines, however, do not
provide an “affirmative right to a § 3B1.2 reduction to every actor but the
criminal mastermind”. United States v. Gomez-Valle, 828 F.3d 324, 331 (5th
Cir. 2016) (emphasis in original).
The Guidelines mitigating-role provision “provides a range of
adjustments for a defendant who plays a part in committing the offense that
makes him substantially less culpable than the average participant in the
criminal activity”. U.S.S.G. § 3B1.2, cmt. n.3(A). The commentary to
§ 3B1.2 provides a “non-exhaustive list of factors” to consider in
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determining whether to reduce the offense level. See § 3B1.2, cmt. n.3(C)(i)–
(v). When some of the factors support the adjustment, but others do not, it
is not clear error to deny the adjustment. See United States v. Bello-Sanchez,
872 F.3d 260, 264–65 (5th Cir. 2017).
There is no evidence that Lorensito: planned or organized the
criminal activity; was involved in decision making; or stood to benefit from
the criminal activity. But, “[t]he evidence is clear . . . as to the nature and
extent of his participation in this criminal activity and the acts he
performed”. United States v. Torres-Hernandez, 843 F.3d 203, 209 (5th Cir.
2016). The record shows that, to further a criminal activity of limited scope
which was readily understandable by its participants, Lorensito helped
remove methamphetamine from tires in his residence and ready the
methamphetamine for delivery. He was “no more or less culpable”, id., than
another co-participant who performed the same tasks. Because the factors
support a determination in either direction, the court’s factual finding that
Lorensito did not play a minor role in the offense is plausible in the light of
the record as a whole, and is, therefore, not clearly erroneous. See Bello-
Sanchez, 872 F.3d at 264–65.
The contention that the court failed to adequately explain its denial of
a mitigating-role adjustment was not raised in district court; therefore,
review is only for plain error. See United States v. Fernandez, 770 F.3d 340,
345 (5th Cir. 2014) (“[Defendant] did not object at sentencing that the
district court gave an inadequate explanation for its findings; accordingly,
this court reviews [the] inadequate-explanation [issue] for plain error.”).
Under that standard, Lorensito must show a forfeited plain error (clear or
obvious error, rather than one subject to reasonable dispute) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct the reversible plain
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error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.Lorensito fails to show that a more detailed explanation would have
changed the court’s sentencing determination. See United States v.
Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009). Therefore, he fails
to demonstrate his substantial rights were affected. See Puckett, 556 U.S. at
135.
For his challenge to the imposition of an importation enhancement
under Guideline § 2D1.1(b)(5), Lorensito asserts the enhancement was
unwarranted because he was entitled to a mitigating-role adjustment. As
discussed above, his mitigating-role adjustment fails; accordingly, Lorensito
was eligible for the enhancement. See U.S.S.G. § 2D1.1(b)(5)(B).
Lorensito contends the court erred by sentencing him based on an
incorrectly-calculated Guidelines sentencing range. As discussed above, he
has not shown reversible error in the determination of that range.
AFFIRMED.
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