IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10552

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOSE FACUNDO GARCIA,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CR-224-1

Before BARKSDALE, OWEN, and WILLETT, Circuit Judges.

PER CURIAM:*

Jose Facundo Garcia pleaded guilty to possession, with intent to 

distribute, methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 

§ 841 (b)(1)(C). Garcia received a below-Guidelines sentence of 121 months’

imprisonment. His sole issue on appeal is whether the court committed 

 

* 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

April 20, 2018

Lyle W. Cayce

Clerk

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No. 17-10552

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reversible clear error by denying his request for a mitigating-role adjustment,

pursuant to Guideline § 3B1.2. 

Although post-Booker, the Guidelines are advisory only, the district 

court must avoid significant procedural error, such as improperly calculating 

the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51 

(2007). If no such procedural error exists, a properly preserved objection to an 

ultimate sentence is reviewed for substantive reasonableness under an abuseof-discretion standard. Id. at 51; United States v. Delgado-Martinez, 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 751, 

764 (5th Cir. 2008). 

Defendant has the burden of demonstrating by a preponderance of the 

evidence his entitlement to a minor or minimal role adjustment. Id.; United 

States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016); United States v. TorresHernandez, 843 F.3d 203, 209–10 (5th Cir. 2016). As noted by Garcia, whether 

he was a minor or minimal participant is a factual finding, reviewed for clear 

error. E.g., United States v. Sanchez-Villarreal, 857 F.3d 714, 721 (5th Cir. 

2017). “A factual finding is not clearly erroneous if it is plausible in light of the 

record read as a whole.” Id. (quoting United States v. Villanueva, 408 F.3d 193, 

203 (5th Cir. 2005)). 

In response to Garcia’s Guideline § 3B1.2 objection, the probation officer 

noted Garcia: received financial compensation for being a methamphetamine 

distributor; stored methamphetamine and a firearm in his home; and 

possessed a digital scale in his vehicle. Further, the investigative material did 

not reveal the scope of his involvement in the distribution except to state that 

he received the methamphetamine from “Smiley”. The probation officer 

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concluded Garcia had provided no substantive information to prove his minor 

role and no offense-level reduction was warranted under Guideline § 3B1.2. 

The district court overruled the § 3B1.2 objection for the reasons provided by 

the probation officer. 

The court’s conclusion that Garcia did not meet his burden to prove his 

entitlement to a § 3B1.2 adjustment is plausible in the light of the record as a 

whole. Sanchez-Villarreal, 857 F.3d at 721; Castro, 843 F.3d at 612–13. 

Accordingly, the denial of the adjustment was not clear error. 

AFFIRMED. 

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