United States v. Oscar Barrientos

Case: 10-50427 Document: 00511389004 Page: 1 Date Filed: 02/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2011
No. 10-50427
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OSCAR BARRIENTOS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:09-CR-127-7
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Oscar Barrientos pleaded guilty to conspiracy to possess with intent to
distribute and distribution of cocaine. He was sentenced to, inter alia, 121
months of imprisonment and a three-year term of supervised release. Barrientos
filed a timely notice of appeal.
For the first time on appeal, Barrientos asserts that the district court
should have decreased his offense level by two levels, pursuant to U.S.S.G.
§ 3B1.2(b), based on his minor role in the offense. He points out that his sole
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50427 Document: 00511389004 Page: 2 Date Filed: 02/22/2011
No. 10-50427
role in the offense was to drive loads of drugs 90 miles between Dallas and Waco,
Texas. He further maintains his role was minor relative to that of all the other
indicted co-conspirators who were either mid-level dealers or major suppliers.
Because this issue is raised for the first time on review, we review it for plain
error. See United States v. Martinez-Larraga, 517 F.3d 258, 272 (5th Cir. 2008).
Because a mere courier is not necessarily a minor participant in an
offense, the district court did not plainly err in failing to award Barrientos the
two-level adjustment pursuant to § 3B1.2(b) despite his purportedly small role
in the offense. See Martinez-Larraga, 517 F.3d at 272-73. Moreover, in a case
such as this one where a defendant is sentenced only for conduct that is directly
attributable to him, § 3B1.2 does not require a district court to grant a
minor-role adjustment even if the defendant plays a small part an overall
criminal scheme. United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001).
Barrientos has not shown that the district court committed reversible
plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). The
judgment of the district court is AFFIRMED.
2