United States v. Lopez-Hernandez ( 2023 )

Case: 23-40102 Document: 00516936123 Page: 1 Date Filed: 10/18/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
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FILED
October 18, 2023
No. 23-40102
Summary Calendar Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Miriam Nayely Lopez-Hernandez,
Defendant—Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:21-CR-805-1
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Before Wiener, Stewart, and Douglas, Circuit Judges.
Per Curiam:*
After she was apprehended driving a vehicle laden with drugs over the
U.S.-Mexico border, Defendant-Appellant Miriam Nayely Lopez-
Hernandez pleaded guilty to importing into the United States approximately
51 kilograms of a mixture or substance containing a detectable amount of
methamphetamine. Her sole contention on appeal is that the district court
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40102 Document: 00516936123 Page: 2 Date Filed: 10/18/2023
No. 23-40102
erred in refusing to award her a mitigating-role downward adjustment.
Lopez-Hernandez preserved that contention through an objection to the
Presentence Report (“PSR”). See United States v. Odom, 694 F.3d 544, 546
(5th Cir. 2012). Our review of whether Lopez-Hernandez was a minor or
minimal participant is a factual determination reviewed for clear error. United
States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). A finding is not clearly
erroneous if it is “plausible in light of the record read as a whole.” Id.A defendant is entitled to a downward adjustment under the
Sentencing Guidelines if he or she “play[ed] a part in committing the offense
that makes his [or her] substantially less culpable than the average participant
in the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(A). Lopez-Hernandez
insists that she was the least culpable person in the trafficking scheme and
that she should receive such an adjustment. However, Lopez-Hernandez has
the burden of showing that she was less culpable than the average participant,
not that she was simply less involved than others. See United States v. Castro,
843 F.3d 608, 613 (5th Cir. 2016). Before the district court, she only identified
one other participant, the purported leader of the trafficking organization.
The district court determined that, while the leader participated in the
criminal activity at a “higher level” than Lopez-Hernandez, she was an
average participant, and the leader’s participation was above average.1 These
findings are not clearly erroneous, and the district court’s denial of the
mitigating role adjustment is consistent with the facts before it.
AFFIRMED.
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1
The government indicated that it was aware of “a few” other individuals involved
in the criminal enterprise, but their roles and relative levels of culpability were never made
clear to the district court. And it was Lopez-Hernandez’s burden to establish the culpability
of the average participant. Castro, 843 F.3d at 613. However, she did not do so.
2