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United States v. Escobar

United States Court of Appeals, Fifth Circuit

August 2, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
PATRICIO ESCOBAR, III, Defendant-Appellant

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

          Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

          PER CURIAM:

         Patricio Escobar, III, appeals his sentence, arguing that the district court erred by denying him a mitigating-role reduction and by adding three criminal history points for his 1991 Texas burglary-of-a-vehicle conviction. Detecting no clear error, we affirm the court's denial of the requested mitigating-role reduction. We further find that Escobar did not preserve in the district court the second argument that he raises on appeal. Accordingly, we affirm the sentence.

         I

         Upon Escobar's plea of guilty to possession with intent to distribute approximately 176 kilograms of marijuana, the Probation Office's presentence investigation report ("PSR") calculated the recommended punishment range under the United States Sentencing Guidelines. It set the base offense level at 24 pursuant to U.S.S.G. § 2D1.2(a)(5). Two points were subtracted for Escobar's acceptance of responsibility. It set Escobar's criminal history category as V because it determined that he received 11 criminal history points based on his prior convictions, three of which were added because of Escobar's 1991 Texas burglary-of-a-vehicle conviction. A total offense level of 22 and criminal history category of V resulted in a recommended imprisonment range of 77 to 96 months.

         Escobar raised two objections to the PSR. First, he requested a mitigating-role reduction under U.S.S.G. § 3B1.2, arguing that he was merely a courier of the drugs and worked under the direction of others. Second, Escobar argued that no criminal history points should apply to his 1991 conviction. The district court overruled both objections; it adopted the PSR entirely except that it granted an additional 1-point reduction for acceptance of responsibility. With a new total offense level of 21 and a criminal history category of V, the recommended range of imprisonment was 70 to 87 months. The district court sentenced Escobar to 87 months' imprisonment, to be followed by a five-year term of supervised release. He timely appealed.

         II

         Escobar first argues that it was clear error for the district court to deny him a mitigating-role reduction. Under U.S.S.G. § 3B1.2:

Based on the defendant's role in the offense, decrease the offense level as follows:
(a)If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

         (b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

         In cases falling between (a) and (b), decrease by 3 levels.

          The focus of this reduction is the defendant's relative culpability based on his or her level of involvement in the specific crime for which he or she was convicted.[1] The commentary to § 3B1.2 explains that, in deciding whether the reduction applies, the court should consider the "totality of the circumstances, " and the determination will be "heavily dependent upon the facts of the particular case."[2] A defendant seeking a mitigating-role reduction has the burden of proving its applicability, and we review the district court's factual finding whether it applies for clear error.[3]

         Here, the district court did not clearly err by denying Escobar a reduction for his role in the transportation of marijuana because the facts of the case lend support to the court's finding that a reduction was not appropriate. Escobar was arrested alone, having driven a truck carrying marijuana alone. When federal agents attempted to stop his truck, he fled, first in his truck, then on foot. When the officers caught him, he resisted to the point of having to be tased. The tasing was ineffective, and Escobar then ran toward a group of individuals hiding in a bush yelling in Spanish, then turned and said to the pursuing agents: "We are waiting for you in here." It was later discovered that Escobar had been transporting 22 bundles of marijuana, totaling 176.52 kilograms. Importantly, Escobar has not presented evidence of the involvement of other individuals in the criminal activity, instead arguing that the fact he was only a courier was sufficient itself to justify a mitigating-role reduction. On this record, the district court could have plausibly found that Escobar was an "average" rather than "minor" participant in the offense.

         Escobar argues that the district court's statements at sentencing evidence its application of a per se rule that no drug courier could qualify for a mitigating-role reduction. We disagree. To the contrary, the judge's statements, while exhibiting frustration with the Guidelines, show that she would give the Guidelines due consideration as written. To the extent Escobar argues that the court should have weighed the § 3B1.2 commentary factors on the record, it is the law of this Circuit that sentencing courts need not do so.[4]

         This case is distinguishable from United States v. Sanchez-Villarreal, where the district court had specifically stated that it had considered the defendant's actions to be "critical" or indispensable to the criminal activity, perse requiring the denial of a mitigating-role reduction.[5] That per se rule contradicted the then-recently updated commentary to ยง 3B1.2, which now states that indispensability alone is not determinative in ...


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