United States v. Bazan

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE ARMANDO BAZAN, Defendant-Appellant

No. 18-40725

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 5, 2020

Summary Calendar

Appeal from the United States District Court for the Southern District of Texas

USDC No. 7:16-CR-1376-4

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before SMITH, WIENER, and WILLETT, Circuit Judges.

PER CURIAM:^*

When first presented with Defendant-Appellant Jose Armando Bazan's appeal, this court affirmed his sentence on the ground that, because his sole assertion of error was a question of fact capable of resolution at sentencing, the issue could not constitute plain error. United States v. Bazan, 772 F. App'x 214 (5th Cir. 2019). The Supreme Court vacated that decision and remanded for further consideration in light of Davis v. United States, 140 S. Ct. 1060, 1061 (2020), which requires that unpreserved claims of factual error be reviewed under the full plain error test. Because Bazan does not show that the district court committed a clear or obvious error, we again affirm.

Bazan pleaded guilty to conspiracy to possess with the intent to distribute 500 grams or more of cocaine. The conspiracy began when Bazan's father and Hugo De Hoyos stole some of the forty bundles of cocaine that they were transporting for a third party. They took thirty of the bundles for themselves and diluted the remaining ten into forty counterfeit bundles. They then staged a car accident so that the cloned bundles would be seized by law enforcement. Bazan's father took fifteen bundles as his share and asked Bazan to put him in touch with someone who would sell some of them. Bazan contacted a friend to see if the friend could sell part of the cocaine and then gave his friend's phone number to his father. Bazan's father and the friend arranged to sell three bundles of the cocaine but abandoned the plan when the cocaine would not sell because of its poor quality.

For the first time on appeal, Bazan contends that the district court erred when calculating his United States Sentencing Guidelines imprisonment range by failing to award an offense level reduction under section 3B1.2 for having a mitigating role in the offense. When a defendant has failed to object before the district court, "our review is for plain error under Federal Rule of Criminal Procedure 52(b)."¹ United States v. Fuentes-Canales, 902 F.3d 468, 473 (5th Cir. 2018). Under plain error review, the defendant has the burden to show four prongs. First and second, the defendant must show "(1) an error[,] (2) that is clear and obvious." United States v. Hernandez-Martinez, 485 F.3d 270, 273 (5th Cir. 2007). A factual finding, as is at issue here, "is not clearly erroneous as long as it is plausible in light of the record as a whole." United States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009). Then a defendant must show "(3) that [the error] affected his substantial rights." Hernandez-Martinez, 485 at 273. If the first three prongs are met, "the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Rosales-Mireles v. United States, 138 S. Ct. 1897, 1905 (2018) (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1340 (2016)).

Section 3B1.2 of the Guidelines directs that a defendant's offense level be reduced by two levels "[i]f the defendant was a minor participant in any criminal activity," and a further reduction up to a total of four levels if the participation was "minimal." U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (U.S. SENTENCING COMM'N 2016). The reduction applies to a defendant "who plays a part in committing the offense that makes him substantially less culpable than the average participant in the criminal activity." Id. cmt. n.3(A). "The defendant has the burden to show that he is entitled to the adjustment." United States v. Sanchez-Villarreal, 857 F.3d 714, 721 (5th Cir. 2017). Whether a defendant played a mitigating role is a question of fact, and the court should consider:

(i) the degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the defendant participated in planning or organizing the criminal activity; (iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; (iv) the nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; (v) the degree to which the defendant stood to benefit from the criminal activity.

U.S.S.G. cmt. n.3(C). "It is improper for a court to award a minor participation adjustment simply because a defendant does less than the other participants. Rather, the defendant must do enough less so that he at best was peripheral to the advancement of the illicit activity." United States v. Thomas, 932 F.2d 1085, 1092 (5th Cir. 1991); see also United States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016).

Bazan has failed to show that the district court clearly erred in not awarding him a mitigating role reduction. In light of the...