USA v. Deandre Santee, No. 18-20618 (5th Cir. 2019)
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Case: 18-20618 Document: 00515160901 Page: 1 Date Filed: 10/16/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-20618 Summary Calendar FILED October 16, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. DEANDRE BENDARD SANTEE, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CR-516-4 Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges. PER CURIAM: * Deandre Bendard Santee challenges the sentence imposed following his guilty-plea conviction for aiding and abetting an armed bank robbery, in violation of 18 U.S.C. § 2113(a), 18 U.S.C. § 2113(d), and 18 U.S.C. § 2. In claiming the district court erred in overruling his objection that he should have received a mitigating-role adjustment, under Guideline § 3B1.2, he contends he was simply a lookout, lacked knowledge of the robbery’s scope and structure Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: 18-20618 Document: 00515160901 Page: 2 Date Filed: 10/16/2019 No. 18-20618 before his arrival at the target credit union, and did not help plan or organize the robbery. Although post-Booker, the Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuseof-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Whether defendant is a minor or minimal participant under Guideline § 3B1.2, described below, is a factual question. United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (citation omitted). A finding that is plausible in the light of the whole record is not clearly erroneous. Id. (citation omitted). Guideline § 3B1.2 allows, inter alia, a four-offense-level reduction if the court finds defendant’s role in the offense was “minimal”; if defendant’s role was “minor”, it provides a two-offense-level reduction. U.S.S.G. § 3B1.2. Defendant must show an entitlement to these reductions, United States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016) (citation omitted), and defendant’s culpability is reviewed relative to co-defendants’. Sanchez, 872 F.3d 260, 264 (5th Cir. 2017). United States v. Bello- Reduction is unwarranted, however, simply because defendant “does less than other participants”. United States v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005) (citation omitted). “[T]o qualify as a minor participant, a defendant must have been peripheral to the advancement of the illicit activity”. Id. (citation omitted). 2 Case: 18-20618 Document: 00515160901 Page: 3 Date Filed: 10/16/2019 No. 18-20618 Santee was recorded while meeting with co-defendants the morning of the robbery. He drove one of the four automobiles in which the group traveled to the credit union. Co-defendants and he reconnoitered the area during the hour preceding the robbery. His cellular telephone records established he was on a conference call with all co-defendants during their travel to the credit union and throughout the robbery. During the robbery, he remained in his automobile as a lookout, as did other co-defendants; following the robbery, he drove one co-defendant away. In the light of all co-defendants’ actions, the evidence shows he was more than a peripheral participant in the offense. Therefore, the court did not clearly err in denying a mitigating-role reduction. AFFIRMED. 3
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