United States v. Jose Bazan

Case: 18-40724 Document: 00515049003 Page: 1 Date Filed: 07/25/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40724
FILED
July 25, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ARMANDO BAZAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-936-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Jose Armando Bazan pleaded guilty to a single count of possession with
intent to distribute cocaine. After application of the safety valve adjustment,
he was sentenced below the mandatory minimum sentence to 119 months of
imprisonment. For the first time on appeal, Bazan argues that he should have
received a mitigating role reduction under U.S.S.G. § 3B1.2 and that his
sentence is substantively unreasonable.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-40724 Document: 00515049003 Page: 2 Date Filed: 07/25/2019
No. 18-40724
Because Bazan did not raise the mitigating role adjustment issue or
object on this basis in the district court, our review is limited to plain error.
See United States v. Martinez-Larraga, 517 F.3d 258, 272 (5th Cir. 2008). The
determination whether a defendant was a minimal or minor participant is a
factual issue. United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016).
“Questions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.” United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Thus, Bazan fails to show that the court
plainly erred in failing to award a reduction under § 3B1.2.
Bazan’s substantive reasonableness argument is likewise reviewed for
plain error because he did not object in the district court on this basis. See
United States v. Heard, 709 F.3d 413, 425 (5th Cir. 2013). Bazan’s argument
that the district court should have sentenced him even lower below the
guidelines range based on his cooperation with the Government and testimony
in a drug conspiracy case merely reflects his disagreement with the propriety
of his sentence and the district court’s weighing of the 18 U.S.C. § 3553(a)
factors. His argument is insufficient to overcome the presumption of
reasonableness afforded his below-guidelines sentence. See United States v.
Broussard, 882 F.3d 104, 108, 113 (5th Cir. 2018); see also United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Indeed, even without the added hurdle of the plain-error standard,
Bazan’s substantive reasonableness argument would still lose. Although
Bazan debriefed truthfully with the government, he did not provide substantial
assistance in this case; he provided it in the later cocaine-conspiracy case. The
district court did not abuse its discretion in rebuffing Bazan’s attempt at a
double-dip.
Accordingly, the judgment of the district court is AFFIRMED.
2