United States Court of Appeals

for 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 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opinion should not be published and is not precedent except under the limited 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

May 11, 2022

Lyle W. Cayce

Clerk

Case: 21-50383 Document: 00516315444 Page: 1 Date Filed: 05/11/2022
No. 21-50383

2

two-level mitigating role adjustment under Sentencing Guideline § 3B1.2, 

asserting the record shows her participation in the drug conspiracy was as a 

low-end nonessential drug distributor to individuals and was peripheral 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. 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, its application of the Guidelines is reviewed de 

novo; its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

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

error. E.g., United States v. Gomez 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, cmt. n.5. 

The 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 clearly erred in denying her request for a minor-role adjustment. 

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