United States v. Salcido

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2008
No. 07-40820
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PEDRO SALCIDO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-1011-1
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Pedro Salcido appeals his 135-month sentence for conspiracy to possess
cocaine with intent to distribute. Salcido argues that the district court erred in
refusing to grant a downward adjustment for his minor or minimal role in the
offense. He contends that he was on the bottom rung of the conspiracy ladder
and that he was merely a delivery man. In the district court, Salcido sought only
a two-level reduction for his minor role in the offense. His preserved objection
*
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should not be published and is not precedent except under the limited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. 07-40820
to the denial of a minor role adjustment is reviewed for clear error. United
States v. Martinez-Larraga, 517 F.3d 258, 272 n.12 (5th Cir. 2008). He did not
seek a minimal role adjustment in the district court. Issues raised for the first
time on appeal are reviewed for plain error. Id. at 272.
“[I]n order to qualify as a minor participant, a defendant must have been
peripheral to the advancement of the illicit activity.” United States v.
Villanueva, 408 F.3d 193, 204 (5th Cir. 2005) (internal quotation marks
omitted). The facts contained in the presentence report and admitted by Salcido
establish that he was not peripheral to the conspiracy: he brokered the deal; he
possessed a key to the stash house; a utility bill for the stash house and a drug
ledger were found in his residence; and he was driving a vehicle which had a
gate pass to access the private subdivision where the stash house was located.
Because the district court did not clearly err in denying the minor role
adjustment, it necessarily did not commit error, plain or otherwise, in denying
a minimal role adjustment, which applies to participants having less than a
minor role in the offense. U.S.S.G. § 3B1.2, cmt. n.4. The judgment of the
district court is AFFIRMED.
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