United States Court of Appeals

for the Fifth Circuit

No. 20-10549

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Henry Echarte-Rivero, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CR-36-1

Before Jones, Barksdale, and Stewart, Circuit Judges.

Per Curiam:*

Henry Echarte-Rivero was convicted by a jury of conspiracy to 

possess, with intent to distribute, 50 grams or more of methamphetamine, in 

violation of 21 U.S.C. §§ 841 and 846. He was sentenced to, inter alia, a 

below-Sentencing Guidelines sentence of 188 months’ imprisonment.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 4, 2021

Lyle W. Cayce

Clerk

Case: 20-10549 Document: 00515887917 Page: 1 Date Filed: 06/04/2021
No. 20-10549

2

Although post-Booker, the Sentencing Guidelines are advisory only, 

the district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 46, 51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues 

preserved in district court, as in this instance, its application of the 

Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., 

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Solely at issue on appeal is Echarte’s claiming the district court erred 

in denying a minor-role reduction to his offense level. Whether a defendant 

qualifies for a mitigating role adjustment under Guideline § 3B1.2 is a factual 

finding reviewed, as discussed above, only for clear error. United States v. 

Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). A factual finding is not 

clearly erroneous if it is “plausible in light of the record as a whole”. Id.

(citation omitted). Echarte presents two bases in support of his claim.

First, he contends a role adjustment was required because the 

Government asserted to the jury he played “a minor part” in a larger 

conspiracy (separate, but related to, the conspiracy from which Echarte’s 

conviction stems). Those Government assertions came, however, after the 

jury heard testimony regarding a larger, years-long conspiracy investigation 

by the FBI, and the Government stated correctly the law regarding 

participation in a conspiracy. “When a sentence is based on an activity in 

which a defendant was actually involved, § 3B1.2 does not require a reduction 

in the base offense level even though the defendant’s activity in a larger 

conspiracy may have been minor or minimal.” United States v. Stanford, 823 

F.3d 814, 852 (5th Cir. 2016) (citation omitted). 

Case: 20-10549 Document: 00515887917 Page: 2 Date Filed: 06/04/2021
No. 20-10549

3

For his other basis, Echarte claims the court overruled his objection 

for sentencing because of its erroneous determination he was integral to the 

conspiracy. He contends there was no evidence he was involved in 

organizing the transaction or knew the scope of the conspiracy. 

This contention ignores the trial testimony of FBI agents and a coconspirator. Additionally, the court considered Echarte’s substantial aid in 

the transportation and attempted delivery of three kilograms of

methamphetamine with full knowledge of the scope and goals of the 

conspiracy and his own role in the offense. It also considered Echarte’s

negotiating with his co-conspirators about the delivery, and his acting as a 

lookout or backup when a co-defendant received the methamphetamine from 

another individual. Given all the above, the court’s finding Echarte was an 

average participant is plausible in the light of the record as a whole. See 

Torres-Hernandez, 843 F.3d at 207. 

AFFIRMED. 

Case: 20-10549 Document: 00515887917 Page: 3 Date Filed: 06/04/2021