United States Court of Appeals

for 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 

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not be published and is not precedent except under the limited circumstances set forth in 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

August 14, 2020

Lyle W. Cayce

Clerk

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No. 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, the district court applied an enhancement under U.S.S.G.

§ 2D1.1(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, 914-15 (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 

panel 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. § 3B1.2(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 preponderance 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 fails 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. 

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Douglas, 957 F.3d 602, 609 (5th Cir. 2020) (internal quotation marks and 

citation omitted). We review for substantive reasonableness under an abuseof-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 shows 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.

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