IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40725

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ARMANDO BAZAN,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:16-CR-1376-4

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before SMITH, WIENER, and WILLETT, Circuit Judges.

PER CURIAM:*

When first presented with Defendant-Appellant Jose Armando Bazan’s 

appeal, this court affirmed his sentence on the ground that, because his sole 

assertion of error was a question of fact capable of resolution at sentencing, the 

issue could not constitute plain error. United States v. Bazan, 772 F. App’x 214 

(5th Cir. 2019). The Supreme Court vacated that decision and remanded for 

* 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 5, 2020

Lyle W. Cayce

Clerk

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further consideration in light of Davis v. United States, 140 S. Ct. 1060, 1061 

(2020), which requires that unpreserved claims of factual error be reviewed

under the full plain error test. Because Bazan does not show that the district 

court committed a clear or obvious error, we again affirm.

Bazan pleaded guilty to conspiracy to possess with the intent to 

distribute 500 grams or more of cocaine. The conspiracy began when Bazan’s 

father and Hugo De Hoyos stole some of the forty bundles of cocaine that they 

were transporting for a third party. They took thirty of the bundles for 

themselves and diluted the remaining ten into forty counterfeit bundles. They

then staged a car accident so that the cloned bundles would be seized by law 

enforcement. Bazan’s father took fifteen bundles as his share and asked Bazan 

to put him in touch with someone who would sell some of them. Bazan 

contacted a friend to see if the friend could sell part of the cocaine and then 

gave his friend’s phone number to his father. Bazan’s father and the friend 

arranged to sell three bundles of the cocaine but abandoned the plan when the 

cocaine would not sell because of its poor quality.

For the first time on appeal, Bazan contends that the district court erred 

when calculating his United States Sentencing Guidelines imprisonment 

range by failing to award an offense level reduction under section 3B1.2 for 

having a mitigating role in the offense. When a defendant has failed to object 

before the district court, “our review is for plain error under Federal Rule of 

Criminal Procedure 52(b).”1 United States v. Fuentes-Canales, 902 F.3d 468, 

473 (5th Cir. 2018). Under plain error review, the defendant has the burden to 

show four prongs. First and second, the defendant must show “(1) an error[,]

(2) that is clear and obvious.” United States v. Hernandez-Martinez, 485 F.3d 

1 “A plain error that affects substantial rights may be considered even though it was 

not brought to the court’s attention.” FED. R. CRIM. P. 52(b).

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270, 273 (5th Cir. 2007). A factual finding, as is at issue here, “is not clearly 

erroneous as long as it is plausible in light of the record as a whole.” United 

States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009). Then a defendant must 

show “(3) that [the error] affected his substantial rights.” Hernandez-Martinez, 

485 at 273. If the first three prongs are met, “the court of appeals should 

exercise its discretion to correct the forfeited error if the error seriously affects 

the fairness, integrity or public reputation of judicial proceedings.” RosalesMireles v. United States, 138 S. Ct. 1897, 1905 (2018) (quoting Molina-Martinez 

v. United States, 136 S. Ct. 1338, 1340 (2016)).

Section 3B1.2 of the Guidelines directs that a defendant’s offense level 

be reduced by two levels “[i]f the defendant was a minor participant in any 

criminal activity,” and a further reduction up to a total of four levels if the 

participation was “minimal.” U.S. SENTENCING GUIDELINES MANUAL § 3B1.2

(U.S. SENTENCING COMM’N 2016). The reduction applies to a defendant “who 

plays a part in committing the offense that makes him substantially less 

culpable than the average participant in the criminal activity.” Id. cmt. n.3(A).

“The defendant has the burden to show that he is entitled to the adjustment.” 

United States v. Sanchez-Villarreal, 857 F.3d 714, 721 (5th Cir. 2017). Whether 

a defendant played a mitigating role is a question of fact, and the court should 

consider:

(i) the degree to which the defendant understood the scope and 

structure of the criminal activity; (ii) the degree to which the 

defendant participated in planning or organizing the criminal 

activity; (iii) the degree to which the defendant exercised decisionmaking authority or influenced the exercise of decision-making 

authority; (iv) the nature and extent of the defendant’s 

participation in the commission of the criminal activity, including 

the acts the defendant performed and the responsibility and 

discretion the defendant had in performing those acts; (v) the 

degree to which the defendant stood to benefit from the criminal 

activity.

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U.S.S.G. cmt. n.3(C). “It is improper for a court to award a minor participation 

adjustment simply because a defendant does less than the other participants. 

Rather, the defendant must do enough less so that he at best was peripheral 

to the advancement of the illicit activity.” United States v. Thomas, 932 F.2d 

1085, 1092 (5th Cir. 1991); see also United States v. Castro, 843 F.3d 608, 613 

(5th Cir. 2016).

Bazan has failed to show that the district court clearly erred in not 

awarding him a mitigating role reduction. In light of the record as a whole, the 

district court’s implicit finding that Bazan did not play a minor role in the 

criminal activity is plausible. First, many of the factors set forth in the 

Guidelines commentary weigh against granting the reduction. Bazan cites to 

no evidence, not even his own statement, that he did not know the scope of the 

overall conspiracy. Bazan helped organize the drug-trafficking conspiracy by 

acting as a broker, helping his father arrange for the sale of the stolen cocaine.

Bazan not only exercised decision-making authority over whom he selected to 

put in touch with his father, he effectively recruited his friend as an additional 

participant in the crime. It is therefore plausible to view Bazan’s involvement 

as more than merely peripheral.

Second, in light of those factors, it is not at all clear that Bazan is 

significantly less culpable than the average participant in the criminal activity 

here. Bazan is less culpable than his father and De Hoyos, who agreed to 

transport forty bundles of cocaine for a third party, developed a plan to steal 

part of the cocaine by cloning bundles, executed the plan by staging a vehicle 

accident and taking the cocaine, and maintained possession of the stolen 

cocaine. But Bazan’s culpability as compared to the other three participants is 

not as clear. Victor Gonzales accompanied Bazan’s father and De Hoyos when 

they picked up the cocaine and then, in exchange for $5,000, he staged the car 

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accident, which led to the seizure of the counterfeit bundles by driving the 

wrecked car and placing a fraudulent 911 call. Bazan presents no evidence, 

however, that Gonzales had any of the discretion that Bazan possessed or that 

Gonzales recruited another member of the conspiracy as Bazan did.

Vanessa Rios discovered her husband, De Hoyos, repackaging the 

diluted cocaine at their house, then took it on herself to help package five of 

the bundles when her husband told her that he needed to work quickly. Finally, 

the unindicted friend of Bazan’s arranged with Bazan’s father to sell three of 

the bundles and attempted to do so, stopping only when he could not find 

buyers. In his brief, Bazan does not address his culpability as compared to 

Gonzales, Rios, or Bazan’s friend. It would be plausible based on the record to 

conclude that Bazan was roughly as culpable as those three, so Bazan has

failed to show that he was substantially less culpable than the average 

participant.

Finally, Bazan does not cite to a single case in which this court, or any 

other, has reversed a district court’s denial of a mitigating role adjustment. At 

the very best, Bazan has shown that his entitlement to the reduction was 

debatable. He has certainly not shown that failing to grant him the reduction 

was a clear error, and therefore cannot meet the high bar of plain error.

The judgment is AFFIRMED.

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