United States v. Franco-Lopez

Case: 21-40239 Document: 00516258533 Page: 1 Date Filed: 03/29/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 29, 2022
No. 21-40239
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Oscar Franco-Lopez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-71-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Oscar Franco-Lopez pleaded guilty to possession of 500 grams or
more of methamphetamine and unlawful possession of a firearm and
ammunition by an alien. He received a below-guidelines sentence of 140
months of imprisonment on the drug offense, which was ordered to run
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40239 Document: 00516258533 Page: 2 Date Filed: 03/29/2022
No. 21-40239
concurrently with the 10-year term of imprisonment imposed for his firearm
and ammunition offense. He filed a timely notice of appeal and now
challenges the district court’s denial of his request for a two-level minor-role
adjustment under U.S.S.G. § 3B1.2(b).
A “minor participant” is any participant “who is less culpable than
most other participants in the criminal activity, but whose role could not be
described as minimal.” § 3B1.2, comment. (n.5). Whether Franco-Lopez
was a minor participant under § 3B1.2 is a factual question that this court
reviews for clear error, and the district court’s finding will not be disturbed
unless it is implausible in light of the record as a whole. See United States
v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016).
Franco-Lopez argues that the district court failed to properly weigh
the appropriate factors for assessing relative culpability. He further asserts
that his participation in the criminal offense was substantially less culpable
than that of the average participant under the relevant factors and that the
district court’s error was not harmless.
Notwithstanding the circumstances cited by Franco-Lopez and his
arguments to the contrary, the district court weighed the relevant factors as
it saw fit under the circumstances, see United States v. Torres-Hernandez,
843 F.3d 203, 210 (5th Cir. 2016), and plausibly found that Franco-Lopez’s
actions were not peripheral to the advancement of the offense at issue,
possession with intent to distribute the stolen methamphetamine, but instead
established that his participation was average relative to the other persons
that he identified as participants in the offense, see United States v. Castro,
843 F.3d 608, 613-14 (5th Cir. 2016); Gomez-Valle, 828 F.3d at 331.
Accordingly, no clear error has been shown. See Castro, 843 F.3d at 613-14.
The judgment of the district court is AFFIRMED.
2