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 v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001). 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40084

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRENDA ANN GAMEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:08-CR-660-1

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Brenda Ann Gamez appeals the sentence imposed following her guilty plea

conviction for transporting an unlawful alien in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii) & (B)(ii). She argues that the district court erred in denying

her a reduction in her offense level for her minor role in the offense pursuant to

U.S.S.G. § 3B1.2. A defendant has the burden of showing that she is entitled to

the downward adjustment. Whether the defendant is a minor participant is a 1

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2009

Charles R. Fulbruge III

Clerk
No. 09-40084

United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005). 2

Id. at 203 (citation omitted). 3

See Garcia, 242 F.3d at 598-99; United States v. Marmolejo, 106 F.3d 1213, 1217 (5th 4

Cir. 1997).

2

factual determination that is reviewed for clear error. “A factual finding is not 2

clearly erroneous if it is plausible in light of the record read as a whole.”3

Gamez has not shown that the district court clearly erred in finding that

she was not entitled to a minor role adjustment under § 3B1.2. Notwithstanding

that Gamez’s role in transporting the alien child in the offense of conviction may

have been only part of a larger smuggling scheme, Gamez was charged with

transporting an undocumented alien for private financial gain – and the record

demonstrates that she agreed to transport a child who she knew was an

undocumented alien across the United States border for private financial gain.

Gamez’s role was not minor, but was central to the transportation of the

undocumented alien child. The district court did not clearly err in denying her 4

a role adjustment under § 3B1.2.

Gamez also argues that the district court erred in finding that she should

be held accountable for her relevant conduct in a previous alien smuggling

offense and that the district court erred in denying her a three-level reduction

in her offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. She

argues that she pleaded guilty to and admitted her involvement in the instant

offense of transporting an illegal alien. She argues that the Government failed

to prove that she was involved in the prior alien smuggling offense, and she

affirmatively denied any involvement in the prior offense.

The district court did not clearly err in finding that Gamez was involved

in the prior alien smuggling offense and should be held accountable for her

relevant conduct in that offense. Further, the district court did not clearly err

in finding that Gamez denied her relevant conduct and, therefore, was not
No. 09-40084

See United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002); United States v. Outlaw,

5

319 F.3d 701, 705 (5th Cir. 2003) (reciting that – for denials of a reduction for acceptance of

responsibility – the standard of review is even more deferential than the pure clearly

erroneous standard).

See U.S.S.G. § 3E1.1 cmt. n.1(a); United States v. Medina-Anicacio, 325 F.3d 638, 648

6

(5th Cir. 2003).

See Medina-Anicacio, 325 F.3d at 648. 7

3

entitled to a reduction in her offense level for acceptance of responsibility. The 5

Presentence Report (PSR) and sentencing transcript support the conclusion that

Gamez was involved in the prior alien smuggling offense, and Gamez

consistently denied her involvement in that offense. Although Gamez was not

required to affirmatively admit relevant conduct, she denied relevant conduct

that the district court found to be true. Because the record provides a sufficient 6

foundation for the district court’s finding that Gamez was involved in the

previous alien smuggling offense and for the district court’s denial of acceptance

of responsibility, the district court did not clearly err in holding Gamez

accountable for her relevant conduct in the prior alien smuggling offense or in

denying a reduction in her offense level for acceptance of responsibility.

7

AFFIRMED.