United States Court of Appeals

for the Fifth Circuit

No. 20-10748

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Marc Blane Baccus, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CR-364-17

Before Barksdale, Engelhardt, and Oldham, Circuit Judges.

Per Curiam:*

Marc Blane Baccus pleaded guilty to one count of conspiracy to 

possess with intent to distribute methamphetamine, in violation of 21 U.S.C. 

§§ 846, 841(a)(1), and 841(b)(1)(C). The district court sentenced him to, 

inter alia, a within-Sentencing Guidelines term of 235-months’

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opinion should not be published and is not precedent except under the limited 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

August 12, 2021

Lyle W. Cayce

Clerk

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imprisonment. Baccus contends the court erred by: refusing to reduce his 

offense level under Guideline § 3B1.2 (mitigating role); applying a two-level 

sentencing enhancement pursuant to Guideline § 2D1.1(b)(5) (importation 

of methamphetamine); and refusing to vary downward from the Guidelines 

range because his offense level was based on the empirically flawed 

assumption that methamphetamine purity shows an enhanced role in an

offense.

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, 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. 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).

A court’s application of a mitigating-role reduction under Guideline

§ 3B1.2 is a factual finding, reviewed, as discussed above, only for clear error.

United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (citation 

omitted). In that regard, defendant has the burden of showing, “by a 

preponderance of the evidence: (1) the culpability of the average participant 

in the criminal activity; and (2) . . . [defendant] was substantially less culpable 

than that participant”. United States v. Castro, 843 F.3d 608, 613 (5th Cir. 

2016) (footnote omitted). Baccus has notshown the requisite clear error. He 

was entrusted as a courier with a large quantity of methamphetamine and, 

further, acted as a distributor. See, e.g., United States v. Kearby, 943 F.3d 969, 

978 (5th Cir. 2019) (affirming denial of role adjustment and explaining 

purchase and sale of a drug is “part and parcel of a drug conspiracy”); United 

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States v. Torres-Hernandez, 843 F.3d 203, 204, 209–10 (5th Cir. 2016)

(affirming denial of role adjustment where defendant physically transported 

marihuana within the United States as part of a distribution chain and was 

paid for his participation). 

Regarding the court’s overruling Baccus’ objection to an 

enhancement under Guideline § 2D1.1(b)(5), he claims there was no showing 

he was aware the methamphetamine was imported. He concedes this issue 

is foreclosed. See United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014)

(citing United States v. Serfass, 684 F.3d 548, 549–54 (5th Cir. 2012)). He 

presents the issue only to preserve it for possible further review. 

Finally, Baccus maintains the court procedurally erred in refusing to 

vary downward from the Guidelines sentencing range because his enhanced

base offense level, predicated on the imported methamphetamine’s purity, is

empirically unsound. Regardless of whether the Guidelines are empirically 

based, it is for the Sentencing Commission to alter or amend them. United 

States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011) (“[W]e will not reject a 

Guidelines provision as ‘unreasonable’ or ‘irrational’simply because it is not 

based on empirical data and even if it leads to some disparities in 

sentencing.”). Courts have discretion to vary from the Guidelines because 

of a policy disagreement, but they are not required to do so. See United States 

v. Malone, 828 F.3d 331, 338–39 (5th Cir. 2016). The court understood it 

could vary from the Guidelines, but declined.

AFFIRMED.

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