# United States Court of Appeals **for the Fifth Circuit**

____________ No. 21-40730 Summary Calendar

____________ United States of America, Plaintiff—Appellee ,

versus Danay Rego-Plasencia, Defendant—Appellant

.

______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 1:18-CR-405-2

______________________________ Before Barksdale, Higginson, and Ho, Circuit Judges

. Per Curiam: * Following a bench trial, Danay Rego-Plasencia was convicted of multiple counts in connection with her participating in smuggling illegal aliens into the United Stat es in a tractor-trailer. See 8 U.S.C. §§ 2, 1324. She was sentenced to a below-Guidelines ra nge of 40-months’ imprisonment.

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED May 2, 2023 Lyle W. Cayce Clerk Case: 21-40730 Document: 00516735364 Page: 1 Date Filed: 05/02/2023No. 21-40730

2 Rego maintains the district court erred in denying her request for a four-level minimal-role reduction pu rsuant to Sentencing Guideline § 3B1.2(a). Although post- Booker , the Guidelines are advisory only, the district court must avoid significant procedural error, such as impr operly calculating the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 46, 51 (2007). If no such procedural error ex ists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-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). The district court’s finding Rego wa s not entitled to a minimal-role adjustment is reviewed for clear error. E.g. , United States v. Gomez-Valle , 828 F.3d 324, 327 (5th Cir. 2016). “A fact ual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” Id . (citation omitted). The record shows Rego: arra nged meetings between her coparticipants; served as a decoy to distra ct officers at the border checkpoint before the tractor-trailer crossed; drove in tandem with the tractor-trailer and scouted the highway for law enforcement; doctored the tractor-trailer’s bill of lading; helped program the tractor-tra iler’s electronic log; and was paid thousands of dollars for her pa rticipation in the criminal activity. In the light of the record, the district court’s find ing she was not a minimal participant was plausible. See U.S.S.G. § 3B1.2 cmt. n.4; Gomez-Valle , 828 F.3d at 327; United States v. Bello-Sanchez , 872 F.3d 260, 264 (5th Cir. 2017) (noting when “factors support a plausible judgment in either direction”, denial of reduction is not clearly erroneous). Case: 21-40730 Document: 00516735364 Page: 2 Date Filed: 05/02/2023No. 21-40730

3 Regarding that finding, and for the first time on appeal, Rego asserts that, in denying the minimal-role adjustment, the court erroneously compared her to participants in alie n-smuggling crimes generally, instead of the co-participants in her specific case. Because Rego did not raise this issue in district court, review is only for plain error. E.g. , United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Rego must show a forfeited plain error (clear-orobvious error, rather than one subject to reasonable dispute) that affected her substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If she makes that showing, we have the discre tion to correct the reversible plain error, but generally should do so only if it “serious ly affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. Even assuming arguendo the court committed the requisite clear-orobvious error, Rego could not demons trate her substantial rights were affected because the evidence supports denial of a minimal-role adjustment under the correct standard (her co-participants). E.g. , id .; Bello-Sanchez , 872 F.3d at 264; United States v. Perez , 484 F.3d 735, 745 (5th Cir. 2007) (holding that even if court erred by using in correct legal standard in applying sentencing enhancements, error did not affect defendant’s substantial rights because there was “sufficient evidence to support the enhancements under the correct standard”).
AFFIRMED

. Case: 21-40730 Document: 00516735364 Page: 3 Date Filed: 05/02/2023