from the United States District Court for the Southern
District of Texas
HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
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.
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.
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.
first argues that it was clear error for the district court
to deny him a mitigating-role reduction. Under U.S.S.G.
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.
the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
cases falling between (a) and (b), decrease by 3 levels.
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. 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." 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.
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.
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
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. That per se rule
contradicted the then-recently updated commentary to §
3B1.2, which now states that indispensability alone is not
determinative in ...