# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 50383 Summary Calendar

**United States of America,** Plaintiff

— Appellee **,**

versus **Misty Morales,** Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 7:20

- CR

- 362

- 3

Before **Barksdale, Costa,** and **Engelhardt,** Circuit Judges

**. Per Curiam**  **:** * Misty Morales pleaded guilty to conspiracy to possess , with intent to distribute , 50 grams or more of actual methamphetamine , in violation of 21 U.S.C. §§ 846 , 841(a)(1) , (b)(1)(A) . She was sentenced to , inter alia , 293 months ’ imprisonment. She asserts the district court erred by denying her a

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 11, 2022 Lyle W. Cayce Clerk Case: 21-50383 Document: 00516315444 Page: 1 Date Filed: 05/11/2022No. 21

- 50383

2 two

- level mitigating role adjustment under Sentencing Guideline § 3B1.2 , asserting the record show s her participation in the drug conspiracy was as a low

- end nonessential drug distributor to individuals and was per ipheral to the advancement of the criminal activity. Although post

- Booker , the Sentencing Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Sentencing Guidelines range. Gall v. U nited 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. Delgado

Mar tinez , 564 F.3d 750, 751

– 53 (5th Cir. 2009). In that respect, for issues preserved in district court, 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 7 51, 764 (5th Cir. 2008). The mitigating

- role issue is a question of fact, reviewed only for clear

error. E.g. , United States v. Gome z Valle , 828 F.3d 324, 327 (5th Cir. 2016). Guideline § 3B1.2 (b) (mitigating

- role reduction) authorizes a two

- level reduction for defendant who was a “minor participant”

. A minor participant is one who is “less culpable than most other participants in the criminal activity, but whose role could not be described as minimal”

. U.S.S.G. § 3B1.2, cm t. n.5.
T he district court could plausibly find Morales’ actions were not merely “ peripheral to the advancement ” of the offense at issue

. United States v. Castro , 843 F.3d 608, 613

– 14 (5th Cir. 2016) (explaining “[i]t is improper for a court to award a [§ 3B1.2] adjustment simply because a defendant does less than the other participants” (alteration in original) (citation omitted))

. Accordingly, Morales has not met her burden of showing the court cle arly erred in denying her request for a minor

- role adjustment. Case: 21-50383 Document: 00516315444 Page: 2 Date Filed: 05/11/2022No. 21

- 50383

3 See Gomez

- Valle , 828 F.3d at 329 (explaining “[a] factual finding is not clearly erroneous if it is plausible in [the] light of the record read as a whole” (citation omitted)).
**AFFIRMED**

. Case: 21-50383 Document: 00516315444 Page: 3 Date Filed: 05/11/2022