United States Court of Appeals

For the Eighth Circuit

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No. 17-2237

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jose Ramon Delgado-Gaytan, also known as Saul Estrada-Alvarez

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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Submitted: April 9, 2018

Filed: July 26, 2018

[Unpublished]

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Before GRUENDER, MELLOY, and BENTON, Circuit Judges.

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PER CURIAM.

Jose Ramon Delgado-Gaytan pleaded guilty to one count of possession with

intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1). Before sentencing, the United States Probation Office prepared a

presentence investigation report (“PSR”), recommending a total offense level of 35,

a criminal history category of III, and an advisory guidelines range of 210 to 262
months. Delgado-Gaytan objected to the calculations. He argued that he qualified

for a two-level “minor participant” reduction because he was merely a courier of the

drugs. See U.S.S.G. § 3B1.2(b). The district court overruled the objection, finding 1

that Delgado-Gaytan was an average participant. It accepted the guidelines range as

set forth in the PSR and sentenced him to 210 months’ imprisonment. DelgadoGaytan now appeals, raising three challenges to his sentence. We affirm.

First, Delgado-Gaytan argues that he should receive a two-level “minor

participant” reduction under U.S.S.G § 3B1.2(b). Whether a defendant was a minor

participant is a question of fact reviewed for clear error. United States v. Young, 689

F.3d 941, 946 (8th Cir. 2012). A minor participant “plays a part in committing the

offense that makes him substantially less culpable than the average participant.” See

U.S.S.G. § 3B1.2, cmt. n.3. A defendant’s status as a courier of drugs does “not

necessarilymean he isless culpable than other participants”; rather, he has the burden

of proving that he isless culpable. United States v. Carrazco, 91 F.3d 65, 67 (8th Cir.

1996). Indeed, when a defendant is “apprehended in possession of a very substantial

amount of drugs,” we consider it “a circumstance that tends to suggest that his

participation in the criminal enterprise was itself very substantial.” Id.

Here, police arrested Delgado-Gaytan after a confidential informant (“CI”)

reported that he wasregularly transporting large quantities ofmethamphetamine from

Oklahoma to Minnesota and wasstationed at a hotel in Minnesota with drugs for sale.

Officers conducted a controlled purchase, through a CI, of 1.1 kilograms of

methamphetamine and then executed a search warrant on Delgado-Gaytan’s hotel

room and his vehicle. Inside the hotel room and vehicle, they found, among other

things, eleven bricks of methamphetamine (weighing approximately fifteen pounds),

a digital scale, three identification cards, nine cell phones, and miscellaneous

The Honorable Joan N. Ericksen, United States District Judge for the District 1

of Minnesota.

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packaging materials. Delgado-Gaytan admitted to transporting methamphetamine

fromCalifornia to Minnesota for the purpose of distributing the drugs, some of which

were intended for an unknown coconspirator who would distribute the drugs in

Wisconsin. Given these unobjected-to facts, the district court rejected DelgadoGaytan’s argument that he was merely a minor “runner” or “driver’ of the drugs. 

Instead, the court found that while it was “true that he transported drugs, . . . that was

only part of what he did,” and it noted that “the mere transportation of the drugs does

not transform an average participant into a courier.” On the basis of this evidence,

the district court did not clearly err in denying Delgado-Gaytan’s request for a minorrole reduction. See Young, 689 F.3d at 946; Carrazco, 91 F.3d at 67.

Second, Delgado-Gaytan argues that the district court committed procedural

error by failing to consider the 18 U.S.C. § 3553(a) sentencing factors and failing to

adequately explain the sentence. The district court is not required to recite each

§ 3553(a) factor, but it must be clear from the record that it actually considered the

factors in determining the sentence. United States v. Fry, 792 F.3d 884, 891 (8th Cir.

2015). Delgado-Gaytan concedes that he did not preserve this objection below, so

we review for plain error. See id. To prevail under the plain-error standard, DelgadoGaytan must show that there is (1) an error (2) that is plain and (3) that affects

substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). Once those

three conditions have been met, we have discretion to correct the error if it “seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Id.

(alteration omitted).

At sentencing, the district court considered the § 3553(a) factors, and its

explanation of the sentence was not plainly inadequate. Contrary to DelgadoGaytan’s assertion that the “court did not discuss a single § 3553(a) factor,” it is clear

from the district court’s explanation that it considered the nature and circumstances

of the offense as well as the history and characteristics of the defendant. The court

highlighted Delgado-Gaytan’s criminal history, the fact that he was on supervised

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release at the time of the instant offense, and the quantity and purity of the drugs

involved in this offense. On this record, the court found that the sentence was

sufficient but not greater than necessary. Thus, Delgado-Gaytan’s second argument

fails. See Fry, 792 F.3d at 891.

Finally, Delgado-Gaytan argues that his sentence issubstantivelyunreasonable

because the district court failed to give sufficient weight to mitigating factors and

gave too much weight to his criminal history and the amount of drugs involved in the

underlying offense. We review the substantive reasonableness of a sentence under

the deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007). We may consider a sentence within the guidelines range, like DelgadoGaytan’s, to be presumptively reasonable. See id. Here, Delgado-Gaytan discussed

the mitigating factors at length in his sentencing memorandum and at the sentencing

hearing. Accordingly, we presume the sentencing court considered these arguments.

United States v. Johnson, 619 F.3d 910, 922 (8th Cir. 2010). Moreover, as noted

above, the district court carefully considered the § 3553(a) factors. We see no basis

for finding the sentence unreasonable and thus conclude that the district court did not

abuse its discretion.

For the foregoing reasons, we affirm Delgado-Gaytan’s within-guidelines

sentence.

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