### 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

- G uidelines sentence of 121 months ’ imprisonment. His sole issue on appeal is whether the court committed

* Pursuant to 5 th C ir

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th C ir

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 20, 2018 Lyle W. Cayce Clerk Case: 17-10552 Document: 00514439245 Page: 1 Date Filed: 04/20/2018No. 17

- 10552

2 reversible clear error by denyi ng his request for a mitigating

- role adjustment , pursuant to G uideline § 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 su bstantive reasonableness under an abuse

of

- 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 , 51 7 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 adjus tment. Id .; United States v. Castro , 843 F.3d 608, 612 (5th Cir. 2016); United States v. Torres

Hernandez , 843 F.3d 203, 209

– 10 (5th Cir. 2016). As noted by Garcia, w hether he was a minor or minimal participant is a factual finding , review ed for clear

error. E.g. , U nited 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 (5 th Cir. 2005)). In response to Garcia’s Guideline § 3B1.2 objection, the probation officer noted Garcia : received financial compensation for being a methamphetamine distributo r; stored methamphet amine and a firearm in his home; and possessed a d igital 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 Case: 17-10552 Document: 00514439245 Page: 2 Date Filed: 04/20/2018No. 17

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3 concluded Garcia had provided no su bstantive 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 plausibl e 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. Case: 17-10552 Document: 00514439245 Page: 3 Date Filed: 04/20/2018