USA v. Torres, No. 21-50426 (5th Cir. 2022)
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Case: 21-50426 Document: 00516317953 Page: 1 Date Filed: 05/13/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 13, 2022 No. 21-50426 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Orlando Rodriguez Torres, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 7:20-CR-363-1 Before Southwick, Oldham, and Wilson, Circuit Judges. Per Curiam:* Orlando Rodriguez Torres was sentenced to 168 months of imprisonment after pleading guilty to possession with intent to distribute 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50426 Document: 00516317953 Page: 2 Date Filed: 05/13/2022 No. 21-50426 § 841(a)(1). On appeal, he contends that the district court clearly erred in denying him a minor role adjustment under U.S.S.G. § 3B1.2. The determination whether a defendant is entitled to a mitigating role adjustment under § 3B1.2 is a factual determination that we review for clear error. United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). Rodriguez Torres is entitled to a mitigating role adjustment only if he shows by a preponderance of the evidence: “(1) the culpability of the average participant in the criminal activity; and (2) that [he] was substantially less culpable than that participant.” United States v. Castro, 843 F.3d 608, 612– 13 (5th Cir. 2016). The record reflects that Rodriguez Torres was not substantially less culpable than the average participant. Rodriguez Torres received a delivery of 16 pounds of methamphetamine, stored it overnight at his house, and delivered it to a hotel room the next day. Another participant merely called Rodriguez Torres, told him to answer a phone call he would receive, and told him to deliver the methamphetamine to the location that the other caller would provide. A different participant methamphetamine to Rodriguez Torres. simply delivered the Although the commentary to § 3B1.2 provides that a defendant who merely stores or transports drugs, or who only is paid to perform certain tasks, “may” receive a reduction, the commentary also provides that the decision to grant a reduction is “based on the totality of the circumstances” and “heavily dependent on the facts of the particular case.” § 3B1.2, comment. (n.3(A), (C)). While Rodriguez Torres may have been less culpable than the person who provided the methamphetamine and negotiated its sale, we conclude that the district court did not clearly err in finding that he did not show that he was substantially less culpable than the “average” participant. Accordingly, the judgment of the district is AFFIRMED. 2
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