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 States in a tractor-trailer. See 8 U.S.C. §§ 2, 1324. She 

was sentenced to a below-Guidelines range 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 

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No. 21-40730 

2 

Rego maintains the district court erred in denying her request for a 

four-level minimal-role reduction pursuant to Sentencing Guideline 

§ 3B1.2(a). 

Although post-Booker, the Guidelines are advisory only, the district 

court must avoid significant procedural error, such as improperly calculating 

the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 

(2007). If no such procedural error exists, 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 was 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 factual 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: arranged meetings between her coparticipants; served as a decoy to distract 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-trailer’s electronic log; and was paid 

thousands of dollars for her participation in the criminal activity. In the light 

of the record, the district court’s finding 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). 

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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 alien-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 discretion to correct the reversible plain 

error, but generally should do so only if it “seriously 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 demonstrate 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 incorrect 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. 

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