IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40639

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JORGE BARRERA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:10-CR-1103-5

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Jorge Barrera appeals the 97-month, within-guidelines sentence 

imposed following his guilty plea conviction of conspiracy to possess with intent 

to distribute more than 100 kilograms but less than 1,000 kilograms of 

marijuana. He argues that the district court erred by applying a two-level 

adjustment to his offense level pursuant to U.S.S.G. § 2D1.1(b)(1) based on a 

finding that one of Barrera’s coconspirators possessed a dangerous weapon 

* 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

January 6, 2014

Lyle W. Cayce

Clerk

 

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No. 12-40639

during the offense. He also argues that the district court erroneously denied 

his request for an offense level reduction based on his limited role in the 

offense.

Section 2D1.1(b)(1) provides for a two-level enhancement of the 

defendant’s offense level “[i]f a dangerous weapon (including a firearm) was 

possessed.” § 2D1.1(b)(1); accord United States v. Cooper, 274 F.3d 230, 244

(5th Cir. 2001). The commentary to § 2D1.1 instructs that “[t]he enhancement 

should be applied if the weapon was present, unless it is clearly improbable 

that the weapon was connected with the offense.” § 2D1.1 cmt. n.11(A).

The enhancement will apply where the defendant personally possessed 

the weapon or where a coconspirator possessed the weapon during the 

conspiracy and the coconspirator’s possession was reasonably foreseeable to 

the defendant. See United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 

2010). The Government is required to prove the applicability of the 

enhancement by a preponderance of the evidence. Id.; United States v. 

Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990). “If the Government 

meets that burden, the burden shifts to the defendant to show that it was 

clearly improbable that the weapon was connected with the offense.” United 

States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010); see also U.S.S.G. § 2D1.1 cmt. 

n.11(A).

Barrera has failed to demonstrate clear error in the district court’s 

finding that the enhancement applies because his coconspirator’s possession of 

the weapon was reasonably foreseeable to Barrera. Law enforcement agents 

observed Barrera’s coconspirator throw the weapon out of the window of the 

vehicle they were pursuing, and the coconspirator admitted to owning the 

weapon, attempting to discard it, and knowingly participating in the 

conspiracy by, inter alia, loading marijuana into the tractor-trailer. Thus, the 

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Government “show[ed] a temporal and spatial relationship of the weapon, the 

drug trafficking activity, and [Barrera’s coconspirator],” see Zapata-Lara, 615 

F.3d at 390, and that Barrera’s coconspirator “knowingly possessed the 

weapon,” see Aguilera-Zapata, 901 F.2d at 1215. The record also indicates that 

Barrera participated in the conspiracy by driving the tractor-trailer loaded 

with 967 kilograms of marijuana to a truck stop so that a driver he recruited 

could transport the drugs to Houston, all while Barrera maintained 

communication with his coconspirator. These facts are sufficient to support 

the district court’s imposition of the enhancement based on a finding of 

foreseeability. See, e.g., United States v. Mergerson, 4 F.3d 337, 350 (5th Cir. 

1994); see also United States v. Cisneros-Gutierrez, 517 F.3d 751, 765–66 (5th 

Cir. 2008); Aguilera-Zapata, 901 F.2d at 1216.

Under U.S.S.G. § 3B1.2, a district court may decrease a defendant’s 

offense level by four levels if the defendant was a minimal participant in the 

criminal activity, by two levels if the defendant was a minor participant, or by 

three levels if the level of participation falls between minimal and minor. A 

“minimal participant” is one who is “plainly among the least culpable of those 

involved in the conduct of a group,” such as one who demonstrates a lack of 

knowledge or understanding of the scope and structure of the enterprise. § 

3B1.2 cmt. n.4. A “minor participant” is any participant “who is less culpable 

than most other participants, but whose role could not be described as 

minimal.” § 3B1.2 cmt. n.5. “It is not enough that a defendant does less than 

other participants; in order to qualify as a minor participant, a defendant must 

have been peripheral to the advancement of the illicit activity.” United States 

v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005) (internal quotation marks and 

citation omitted).

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It is the defendant’s burden to show that his role in the offense was minor 

or minimal. See United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001). In 

determining whether a defendant is entitled to a mitigating role reduction 

under § 3B1.2, the district court must consider the broad context of the 

defendant’s crime. See United States v. Atanda, 60 F.3d 196, 198 (5th Cir. 

1995). The district court’s denial of a mitigating role reduction is a factual 

finding reviewed for clear error. Villanueva, 408 F.3d at 203.

Barrera’s argument that he was entitled to a mitigating role reduction 

because he was less culpable than his coconspirators is unavailing. Barrera 

worked closely with his coconspirators to ensure that the marijuana-laden 

tractor-trailer would be transferred to a driver who would then transport the 

load to Houston. Additionally, Barrera has been held responsible for the 

conduct to which he pleaded guilty.

The district court’s determination that Barrera was similarly situated to 

his coconspirators “is plausible in light of the record read as a whole.” 

Villanueva, 408 F.3d at 203. Barrera’s participation was essential, and not 

merely peripheral, to the advancement of the offense, see id. at 204, and was 

“coextensive with the conduct for which he was held accountable,” see Garcia, 

242 F.3d at 598-99. Thus, the district court did not clearly err in denying 

Barrera a mitigating role adjustment. See Villanueva, 408 F.3d at 203.

AFFIRMED.

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