# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 11101 Summary Calendar

**United States of America,** Plaintiff

— Appellee **,**

versus **Wesley Wayne Wakeford,** Defendant

— Appellant

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19

- CR

- 112

- 4

Before **Clement, Higginson,** and **Engelhardt,** Circuit Judges

**. Per Curiam**  **:** ***** Wesley Wayne Wakeford pleaded guilty to conspiring to possess with intent to distribute methamphetamine and was sentenced within the advisory g uidelines range to 71 months in prison. On appeal, he challenges the district court’s application of a two

- level enhancement, its failure to apply a two

- level

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 14, 2020

Lyl e W. Cayce Clerk Case: 19-11101 Document: 00515527736 Page: 1 Date Filed: 08/14/2020No. 19

- 11101

2 reduction, and its failure to grant a downward variance. We find no error and affirm. Because Wakeford’s offense involved methamphetamine imported from Mexico, t he district court applied a n enhancement under U.S.S.G. § 2D 1.1(b)(5)

. Wakeford does not dispute the origin of the drug but maintains that based on our decision in United States v. Rodriguez , 666 F.3d 944 (5th Cir. 2012), the enhancement also required a showing of proximity, familiarity, and repeated business with the importers. This argument is foreclosed by United States v. Foulks , 747 F.3d 914 , 9 14

- 1 5 (5th Cir. 2014) , as Wakeford acknowledges. Although he argues that Foulks was wrongly decided, one panel of this court may not overturn the decision of another p anel absent an intervening change in the law. See Jacobs v. Nat’l Drug Intelligence Ctr. , 548 F.3d 375, 378 (5th Cir. 2008).
Wakeford also contends he should have received a minor

- role adjustment under U.S.S.G. § 3 B 1.2 (b)

. Even assuming this contention was preserved in the district court, it fails. Whether a defendant qualifies as a minor participant under § 3B1.2(b) is a factual question reviewed for clear

error , and a factual finding is not clearly erroneous if it is plausible in light of the record as a whole

. See United States v. Gomez

- Valle , 828 F.3d 324 , 327 (5th Cir. 2016)

. A defendant is entitled to a § 3B1.2 adjustment only if he shows by a preponderanc e of the evidence that he is substantially less culpable than the average participant in an offense. United States v. Castro , 843 F.3d 608, 613 (5th Cir. 2016). Wakeford , who presented no evidence concerning the offense at issue , has not done that. He f ails to establish that the district court clearly erred. See Gomez

- Valle , 828 F.3d at 327. Lastly, we consider Wakeford’s argument that the district court erred in not granting a downward variance, a claim that “amounts to a challenge to the substantive reasonableness ” of the sentence imposed. United States v. Case: 19-11101 Document: 00515527736 Page: 2 Date Filed: 08/14/2020No. 19

- 11101

3 Douglas , 957 F.3d 602, 609 (5th Ci r. 2020) (internal quotation marks and citation omitted). We review for substantive reasonableness under an abuse

of

- discretion standard

. See United States v. Odom , 694 F.3d 544, 547 (5th Cir. 2012) . Because Wakeford’s 71

- month sentence falls within the guidelines range of 57 to 71 months , it is entitled to a presumption of reasonableness. See United States v. Alonzo , 435 F.3d 551, 553

- 54 (5th Cir. 2006). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks , 589 F .3d 173, 186 (5th Cir. 2009). Although Wakeford argues that the district court failed to consider his allegedly minor role , the record show s that the court listened to his arguments in mitigation but assigned greater weight to his criminal history. We will not reweigh the district court’s balancing of relevant factors, see Douglas , 957 F.3d at 609

- 10, and accordingly conclude that the court’s sentence was substantively reasonable.
**AFFIRMED**

. Case: 19-11101 Document: 00515527736 Page: 3 Date Filed: 08/14/2020