IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41080

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARTIN GUILLEN,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:14-CR-46-6

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Martin Guillen pleaded guilty to conspiring to possess with intent to 

distribute more than five kilograms of cocaine, specifically, approximately 

21.98 kilograms gross weight of cocaine, and was sentenced to the 120-month 

statutory minimum sentence, which was the guidelines sentence. For the first 

time on appeal, he challenges the sufficiency of the factual basis for his guilty 

plea and the procedural and substantive reasonableness of his sentence. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 20, 2015

Lyle W. Cayce

Clerk

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No. 14-41080

2

We review for plain error. See United States v. Angeles-Mascote, 206 

F.3d 529, 530 (5th Cir. 2000) (factual basis); United States v. Peltier, 505 F.3d 

389, 391-92 (5th Cir. 2007) (sentence). To establish plain error, Guillen must 

show a forfeited error that is clear or obvious that affects his substantial rights. 

See Puckett v. United States, 556 U.S. 129, 135 (2009). Even if Guillen makes 

such a showing, we have the discretion to correct the error but only if it 

seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. See id.

“To prove conspiracy under 21 U.S.C. § 846, the [G]overnment must 

establish that: (1) an agreement existed between two or more persons to 

violate federal narcotics law, (2) the defendant knew of the existence of the 

agreement, and (3) the defendant voluntarily participated in the conspiracy.” 

United States v. Daniels, 723 F.3d 562, 570 (5th Cir. 2013) (internal quotation 

marks and citation omitted). When, as here, the indictment alleges a 

conspiracy to distribute an amount of a controlled substance that triggers 

enhanced penalties under 21 U.S.C. § 841(b)(1)(A), the Government must also 

establish (4) the quantity of the alleged drug. Id. Guillen challenges only the 

knowledge and participation elements.

Guillen admitted that he retrieved packages of what he knew to be 

cocaine and delivered them to a codefendant’s apartment. The factual basis 

was sufficiently specific to allow the district court to determine that Guillen’s 

conduct satisfied the knowledge and participation elements of a conspiracy. 

See id. Guillen has not shown that the district court erred, plainly or 

otherwise, in finding a legally sufficient factual basis for his guilty plea.

Arguably, Guillen’s challenges to the procedural and substantive 

reasonableness of his sentence were waived by Guillen’s counsel’s comments 

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No. 14-41080

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at sentencing. Even if Guillen’s challenges were merely forfeited, for the 

reasons addressed below, Guillen has not shown plain error. 

Because the 120-month statutory minimum was greater than the 

otherwise applicable guidelines range, 120 months became the guidelines 

range. See U.S.S.G. § 5G1.1(b); § 841(b)(1)(A). Any error in calculating the 

otherwise applicable range, such as not applying a minimal role reduction, did 

not affect Guillen’s substantial rights.

The district court lacked authority to sentence Guillen below the 

statutory minimum because the Government did not file a motion pursuant to 

18 U.S.C. § 3553(e), and Guillen was ineligible for the “safety valve” because 

he had more than one criminal history point; he had six. See § 3553(f)(1); 

U.S.S.G. § 5C1.2(a)(1); see also United States v. Harper, 527 F.3d 396, 411 (5th 

Cir. 2008). Guillen’s conclusional assertions that the district court determined 

his criminal history category by double counting and that one of his two prior

convictions would not have disqualified him for the safety valve fail to 

demonstrate that the district court erred, plainly or otherwise, by not applying 

the safety valve.

AFFIRMED.

 Case: 14-41080 Document: 00513121814 Page: 3 Date Filed: 07/20/2015