# United States Court of Appeals

f or 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 G uidelines term of 235

- month s’

* Pursuant to 5th Cir cuit R ule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir cuit R ule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 12, 2021 Lyle W. Cayce Clerk Case: 20-10748 Document: 00515976021 Page: 1 Date Filed: 08/12/2021No. 20

- 10748

2 imprisonment. Baccus contends the court erred by: refusing to reduce his offense level under Guideline § 3B1.2 (mitigating role); apply ing a two

- level sentencing enhancement pursuant to Guideline § 2 D1.1(b)(5) ( importation of methamphetamine ); and refusing to vary downward from the G uidelines

r ange becaus e 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 prope rly 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 G uideline § 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 not shown 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 deni al of role adjustment and explaining purchase and sale of a drug is “ part and parcel of a drug conspiracy ” ) ; United Case: 20-10748 Document: 00515976021 Page: 2 Date Filed: 08/12/2021No. 20

- 10748

3 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 th e court ’s overruling Baccus’ objection to an enhancement unde r Guideline § 2 D1.1(b)(5) , he claims there was no showing he was aware the methamphetamine w as 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, 5 49

– 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 G uidelines sentencing r ange because his enhanced base offense level , predicated on the imported methamphetamine’s purity , is empirically unsound

. R egardless 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 11 4, 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. ” ). C ourts have discretion to vary from the Guidelines because of a policy disagreement , but they are not required to do so. See United States v. Mal one , 828 F.3d 331, 338

– 39 (5th Cir. 2016)

. T he court understood i t could vary from the Guideli nes , but declined.

AFFIRMED

. Case: 20-10748 Document: 00515976021 Page: 3 Date Filed: 08/12/2021