* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-21048

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE ROBERTO LAVERDE-GUTIERREZ

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:04-CR-446-4

Before JONES, Chief Judge, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jose Roberto Laverde-Gutierrez (“Laverde”) pled

guilty to (1) conspiracy to distribute five kilograms or more of cocaine in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a), and 846; (2) aiding and abetting the

possession with the intent to distribute five kilograms or more of cocaine in

violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a); and

(3) possession of a firearm in furtherance of a drug-trafficking offense in

violation of 18 U.S.C. §§ 924(c)(1)(A), (A)(I). On appeal, Laverde challenges his

United States Court of Appeals

Fifth Circuit

F I L E D

November 26, 2008

Charles R. Fulbruge III

Clerk
No. 05-21048

2

conviction on the firearm offense on the ground that the district court erred by

accepting Laverde’s guilty plea to the firearm offense when he did not admit to

facts sufficient to establish that offense. He challenges his sentence on the

grounds that: (2) the district court clearly erred in denying him a sentencing

adjustment for a minor role; and (3) his sentence was unreasonable. For the

following reasons, we AFFIRM the district court’s judgment.

I. FACTUAL AND PROCEDURAL HISTORY

In August 2004, Carlos Becerra and Fernando Garcia-Lozano provided a

confidential informant (“CI”) with money and instructed him to rent an

apartment in Houston, Texas, that would be used to store cocaine. Becerra told

the CI that a Santeria priest, Laverde, would be staying with them at the

apartment to “protect” the shipment of cocaine. The CI and Laverde began

sleeping atthe apartment on September 1, 2004. On September 3, 2004, Becerra

and Laverde arrived at the apartment with the cocaine. After a raid by

government agents, 308 kilograms of cocaine were recovered in a closet in the

rear bedroom of the apartment. Agents also recovered a loaded Glock pistol

inside the apartment on the floor ofthe living room/kitchen area. Two additional

firearms were found in a shoulder bag on the living room floor of the apartment.

According to the CI, Laverde told him that Becerra had given him a gun.

Laverde was arrested outside, approximately fifty feet away from the apartment.

Laverde pled guilty but objected to the presentence report, arguing that

he should have been given an adjustment for a minor role because he was

substantially less culpable than the other participants. Laverde also objected

to the CI’s statement that Becerra had given him the firearm, explaining that

he had purchased the Glock himself a number of years earlier in Florida. The

district court overruled the objections by Laverde and sentenced him to 168

months of imprisonment on the controlled-substance counts, to run consecutively
No. 05-21048

3

to a sixty-month term of imprisonment on the firearm count. The court also

sentenced Laverde to five years of supervised release. Laverde timely appealed.

II. DISCUSSION

A. Rule 11 Error

Under Federal Rule of Criminal Procedure 11, Laverde argues that his

admitted conduct did not constitute a sufficient factual basis for finding that he

knowingly possessed a firearm in furtherance of a drug trafficking offense, as

defined by 18 U.S.C. § 924(c)(1)(A). Pursuant to Rule 11(b)(3), “[b]efore entering

judgment on a guilty plea, the court must determine that there is a factual basis

for the plea.” Laverde asserts that because he never admitted to the conduct

required for a conviction under this statute, the district court erred in accepting

his guilty plea. See United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en

banc) (holding that Rule 11 requires that the factual basis for the guilty plea on

which the district court makes such a determination consists of the defendant’s

admitted conduct). Significantly, Laverde does not argue that he would not have

pled guilty to the firearm offense without the district court’s alleged error. 

The Government contends that the district court committed no error, plain

or otherwise, in accepting Laverde’s guilty plea. The Government argues that

under Rule 11(b)(3) a district court may satisfy the factual basis requirement

with any information that appears in the record including the Government’s

proffer. See United States v. Musa, 946 F.2d 1297, 1302 (7th Cir. 1991) (holding

that “[a] judge may find the factual basis from anything that appears on the

record,[] which includes the government’s proffer.”). Thus, according to the

Government, because its proffer included evidence that could reasonably be

construed as a factual basis for accepting Laverde’s guilty plea,the district court

did not err in accepting the plea. The Government asserts that the court may

look to the entire record to determine whether there were sufficient facts to

establish the offense to which Laverde pled guilty. 
No. 05-21048

1 We recognize that this final requirement has not been stated consistently in some of

our Rule 11 plain error standard cases. Compare Castro-Trevino, 464 F.3d at 544; Molina, 469

F.3d at 412; with United States v. Palmer, 456 F.3d 484, 491 (5th Cir. 2006) (applying plain

error review of Rule 11 violation without reference to the required “but for” showing or to

Dominguez Benitez). However, the Supreme Court’s instruction is clear–a defendant must

establish that there is a reasonable probability that he would not have entered the guilty plea

if the district court had not committed the Rule 11 violation. Dominguez Benitez, 542 U.S. at

83. 

4

Where, as here, a defendant does not object to the Rule 11 proceedings

before the district court, this court’s review is for plain error. United States v.

Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006). Under plain error review,

Laverde must show that (1) there is an error; (2) the error is clear and obvious;

and (3) the error affects his substantial rights. Id. Laverde must show a

reasonable probability that, but for the alleged Rule 11 error, he would not have

entered the guilty plea. Id. at 544; United States v. Molina, 469 F.3d 408, 412

(5th Cir. 2006); see also United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004).1

Having reviewed the full record, we are satisfied that this case is

controlled by the Supreme Court’s instruction in Dominguez Benitez and this

court’s precedent. We are aware of the distinction–Castro-Trevino and Molina

both featured concessions of error by the Government, and there is no such

concession here. See Castro-Trevino, 464 F.3d at 541; Molina, 469 F.3d at 412.

However, even assuming arguendo thatthe district court plainly erred by failing

to elicit Laverde’s express, personal admission of facts sufficientto establish the

crime of possessing a firearm in furtherance of a felony, he has not established

prejudice. Laverde did not try to withdraw his guilty plea at any time below and

does not do so on appeal. Although he requests that his “guilty plea should be

set aside [and] the case remanded to the district court for further proceedings,”

he does not request the opportunity to go to trial or direct this court to any

portion of the record demonstrating that his plea decision was affected by the
No. 05-21048

5

alleged error–that he did not personally admit to facts sufficient to establish the

offense. See Molina, 469 F.3d at 412. Laverde fails to demonstrate a reasonable

probability that he would not have pled guilty to the firearm offense if the trial

court had solicited his admission of additional facts sufficientto support his plea.

Therefore, we affirm his conviction on the firearm offense.

B. Offense Level Adjustment for Minor Participation

Laverde argues that the district court erred by denying him a two-level

minor role adjustment under U.S.S.G. § 3B1.2. He contends that he was

substantially less culpable than the other participants because he was not

directly involved in importing the 308 kilograms of cocaine into the United

States. The district court’s determination is a factual finding reviewed for clear

error. United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001). 

Pursuant to U.S.S.G. § 3B1.2(b), a district court may reduce a defendant’s

offense level by two levels if the defendant was a minor participant in the

offense. This adjustment applies to a defendant “who is less culpable than most

other participants, but whose role could not be described as minimal.” § 3B1.2,

comment (n.5). This adjustment is intended to be used infrequently because

many offenses are committed by actors of roughly equal culpability. United

States v. Gallardo-Trapero, 185 F.3d 307, 324 (5th Cir. 1999); § 3B1.2, comment

(n.4).

Citing United States v. Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000),

Laverde argues that his level of participation should be judged againstthe other

participants in the offense rather than the “hypothetical average participant.”

He notes that the Government informed the district court, both at the

rearraignment and at sentencing, that he was the least culpable of the

participants. We have previously held that “[a] minor participant adjustment

is not appropriate simply because a defendant does less than other participants.”

Miranda, 248 F.3d at 446; also Burton v. United States, 237 F.3d 490, 504 (5th
No. 05-21048

6

Cir. 2000) (noting that this court does not adhere to the Ninth Circuit’s

requirement of a comparison between the defendant's role and that of the other

participants). The focus of this court’s inquiry with respect to whether a

defendant qualifies for a minor role adjustment is whether the defendant’s

conduct was peripheral to the advancement of the illicit activity. Miranda, 248

F.3d at 446-47. The evidence supports the district court’s conclusion that

Laverde was not a minor participant. Laverde helped in both the transportation

and unloading of the cocaine, and he assisted in guarding the cocaine. His

conduct was thus not peripheral to the advancement of the conspiracy, and we

find that the district court did not clearly err in finding that Laverde was not

eligible for an offense level adjustment under U.S.S.G. § 3B1.2(b). 

C. Consideration of Mitigating Evidence

In his final point of error, Laverde contends that his sentence was

unreasonable because the district court did not demonstrate on the record that

it had considered his arguments in mitigation of his sentence. Relying on Sixth

Circuit precedent, Laverde argues that although he failed to raise this argument

before the district court, the argument is considered preserved for appellate

review because the district court did not clearly ask whether he had any

objections to the sentence. See United States v. Thomas, 498 F.3d 336, 340 (6th

Cir. 2007). We have not adopted such a rule. The district court’s reasons were

sufficient in this case. See United States v. Rodriguez, 523 F.3d 519, 525 (5th

Cir. 2008) (declining to decide whether plain error or abuse of discretion was

appropriate standard of review where defendant argued for the first time on

appeal that the district court inadequately explained its reasoning for the

challenged sentence). 

Under the now discretionary guidelines scheme, a sentencing court has a

duty to consider the factors of 18 U.S.C. § 3553(a) and to correctly determine the

applicable Guidelines range. United States v. Gall, 128 S. Ct. 586, 596 (2007);
No. 05-21048

7

Rodriguez, 523 F.3d at 525. Further, where the record makes clear that the

district court listened to and considered a defendant’s arguments and evidence

regarding the § 3553(a) factors, but found the circumstances insufficient to

warrant a lower sentence, the district court’s reasons for rejecting the

defendant’s § 3553(a) arguments are generally legally sufficient, even ifthey are

brief. See Rodriguez, 523 F.3d at 525 (discussing the Supreme Court’s analysis

of the district court sentencing at issue in Rita v. United States, 127 S. Ct. 2456,

2468-69 (2007)). Finally, “a sentence within a properly calculated Guideline

range is presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554

(5th Cir. 2006); see also Rita, 127 S. Ct. at 2462. 

Laverde argues that the district court pronounced his sentence without

responding to the following mitigating factors: (1) a Guidelines sentence would

result in a disparity among similarly situated defendants; (2) he had never been

involved in any criminal activity in the past; and (3) he was a good and spiritual

person. A review of the record reveals that this is not the case. The district

court noted that Laverde was before the court on his first criminal conviction.

The court also addressed the level of Laverde’s culpability, noting that Laverde

was a trusted member of the conspiracy and that his role was to “protect and

watch” over the cocaine. The district judge explained that she believed a

sentence atthe low end ofthe Guidelines range was appropriate in this case, and

thatthe sixty-month sentence on the firearm count was a statutory requirement.

Laverde has failed to demonstrate that the district court’s sentencing

determination was unreasonable.

III. CONCLUSION

Because Laverde has not shown a reasonable probability that, but for the

alleged Rule 11 violation by the district court, he would not have pled guilty to

possession of a firearm in furtherance of a drug-trafficking offense, his conviction
No. 05-21048

8

under § 924(c)(1)(A) offense is AFFIRMED. We further AFFIRM the district

court’s judgment in all other respects.