### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-40259 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JOSE ANGEL SAAVEDRA-MORENO, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:10-CR-1870-1

Before REAVLEY, JOLLY and DAVIS, Circuit Judges. PER CURIAM: * Jose Angel Saavedra-Moreno (Saavedra) appeals his conviction a nd sentence for possession of methamphetamine with intent to distribute. Finding no reversible error, we affirm. Saavedra first challenges the district cou rt ’ s imposition of a two-level adjustment f

o r h i s role pursuant to § 3B1.1(c) of the Sentencing Guidelines, which also resulted in the denial of a safety valve adjustment

. Saavedra contends that the enhancement is inapplicable because the person he allegedly U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 7, 201 3 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-40259 Document: 00512138351 Page: 1 Date Filed: 02/07/2013No. 12-40259

directed was a confidential source ( C S ). Alternatively, he argues that the district court erred by concluding that he wa s the person heard speaking in a recorded telephone conversation with the CS. Although Saavedra objected to the enhancement on the second ground he raises here, he did not do so on the first ground. Thus, we review that argument f o r p l ain error. See United States v. Mondragon-Santiago , 564 F.3d 357, 361 (5th C i r . 2 0 0 9); United States v. Cabral-Castillo , 35 F.3d 182, 188-89 (5th Cir. 1994). The Government concedes th a t th e CS cannot be a participant for
purposes of a § 3B1.1 enhancement. Nevertheless, we conclude that any plain

e rror there may have been did not affect Saavedra’s substantial ri ght s . Saavedra did not dispute the presentence report’s factual determination that he directed another coconspirator, who was unidentified, to deliver a drug-laden

van along with $1,200 to the CS. As those facts would support the enhancement, Saavedra cannot show a reasonable probability that, b u t for the error, the outcome would have been different. See United States v. Marquez , 685 F.3d 501, 510 (5th Cir. 2012). W e n e e d not reach Saavedra’s alternative argument regarding the district court’s findings with respect to the re c or de d telephone call. Given the determination regarding Saavedra’s role, it follows that the court did not reversibly err by denying him a safety valve r e du c t ion. See U.S.S.G. § 5C1.1(a)(4). Saavedra also contends that the factual basis is insufficient to support his plea b ecause it did not establish that he knew the drug type and quantity. As Saavedra concedes, his argument is foreclosed by this court’s decision in United States v. Betancourt , 586 F.3d 303, 307-09 (5th Cir. 2009). He raises it solely to preserve it for further review. The judgment of the district court is AFFIRMED.

2 Case: 12-40259 Document: 00512138351 Page: 2 Date Filed: 02/07/2013