United States v. Guzman-Valdez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 19, 2008
No. 06-40791
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SERGIO GUZMAN-VALDEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-353-ALL
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Sergio Guzman-Valdez pleaded guilty and was convicted of importation of
cocaine. The district court sentenced him to 70 months of imprisonment, three
years of supervised release, and a $100 special assessment.
Guzman-Valdez argues that he was wrongly denied a downward
adjustment for his minor or minimal role in the offense. The advisory
Sentencing Guidelines provide for a reduction in the base offense level of a
“minor” or a “minimal” participant. U.S.S.G. § 3B1.2. To merit a reduction
*
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should not be published and is not precedent except under the limited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. 06-40791
under § 3B1.2, the defendant must have been “substantially less culpable” than
the average participant. § 3B1.2, comment. (n.3(A)). The role of a defendant in
the offense is a factual determination that we review for clear error. United
States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
The presentence report (PSR) indicates that Guzman-Valdez’s car crossed
into Mexico nine times in just over two months. On one of these occasions
Guzman-Valdez was found to have $1450 hidden in the air vent of his car. The
PSR also indicates that Guzman-Valdez had a history of unemployment.
Guzman-Valdez has not shown that his participation in the offense was
“peripheral to the advancement of the illicit activity” or that it was not “critical
to the offense,” given that he directly transported a sizable load of cocaine and
was found with a large sum of money concealed in his car’s air vent on a prior
occasion. Villanueva, 408 F.3d at 204; United States v. Tremelling, 43 F.3d 148,
153 (5th Cir. 1995). Guzman-Valdez has not demonstrated that the district
court’s denial of a role adjustment was clearly erroneous.
AFFIRMED.
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