United States v. Escareno-Varela

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 7, 2008
No. 07-51222
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CRISTINA ESCARENO-VARELA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-1063-ALL
Before SMITH, BARKSDALE and ELROD, Circuit Judges.
PER CURIAM:*
Cristina Escareno-Varela (Varela) appeals the 18-month sentence imposed
following her guilty plea to importation of marijuana and possession with intent
to distribute marijuana. She argues that the district court clearly erred in
denying her a minor-role adjustment pursuant to U.S.S.G. § 3B1.2. Varela
contends that she was a mere courier who was substantially less culpable than
other participants in the offense.
*
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should not be published and is not precedent except under the limited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. 07-51222
Whether a defendant is a minor or minimal participant is a factual
determination reviewed for clear error. United States v. Villanueva, 408 F.3d
193, 203 & n.9 (5th Cir. 2005). Pursuant to § 3B1.2(b), a district court may
decrease a defendant’s offense level by two levels if the defendant was a minor
participant. An adjustment for a minor role applies to a defendant “who is less
culpable than most other participants, but whose role could not be described as
minimal.” § 3B1.2 cmt. n.5.
Varela’s ongoing participation in importing multiple kilograms of
marijuana provided an indispensable service to the drug-trafficking operation
and was essential to its success. See United States v. Brown, 54 F.3d 234, 241
(5th Cir. 1995); see also United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.
1989). Varela exclusively was responsible for transporting the marijuana across
the border and insuring that the marijuana was dispatched effectively to its
intended recipients in Kansas. Varela additionally was aware that the jalapeño
cans contained a type and quantity of illegal narcotics, and she received $40 for
each successful crossing. Thus, Varela directly profited from her knowing
participation in drug importation activities.
Thus, the district court’s finding that Varela was not a minor participant
was plausible in light of the record as a whole and therefore not clearly
erroneous. See Villanueva, 408 F.3d at 203-04. Accordingly, the judgment of the
district court is AFFIRMED.
2