IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41654

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee, 

v. 

OBED TORRES-HERNANDEZ, 

 Defendant–Appellant. 

Appeal from the United States District Court 

for the Southern District of Texas 

Before KING, OWEN, and HAYNES, Circuit Judges. 

OWEN, Circuit Judge:

Obed Torres-Hernandez was charged under 21 U.S.C. § 841(a)(1) and 

(b)(1)(C), and 18 U.S.C. § 2 with possession with intent to distribute 95 

kilograms of marijuana, and he pled guilty to that offense.1 He was sentenced 

to 57 months of imprisonment2 and contends on appeal that because his 

participation in this drug trafficking offense was limited to carrying a bundle 

of marijuana on his back across the border between Texas and Mexico, the 

 

1 The original indictment alleged more than 100 kilograms of marijuana, but a 

subsequent reweigh showed only 95 kilograms. 

2 The defendant was also sentenced to 18 months to run consecutively for violation of 

the terms of his probation for a previous offense. 

United States Court of Appeals

Fifth Circuit

FILED

December 6, 2016

Lyle W. Cayce

Clerk

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district court erred in failing to grant a downward adjustment of his offense 

level. Torres-Hernandez contends that under § 3B1.2 of the Sentencing 

Guidelines,3 in light of Amendment 794, which became effective on November 

1, 2015, he played a minor role in the offense and should have received a twolevel reduction.4 We affirm the district court’s judgment. 

I 

Customs and Border Patrol agents observed six individuals walking 

north from the Rio Grande River towards Brownsville, Texas carrying bundles 

on their backs. Obed Torres-Hernandez and others were apprehended shortly 

thereafter, and five bundles of marijuana were found nearby. Four individuals, 

including Torres-Hernandez, were arrested while the other two, who were 

juveniles, were released. The four men who were arrested had strap marks on 

their backs that were consistent with having carried the bundles. Each of the 

men admitted that he knew he was transporting a controlled substance within 

the United States. The bundles, collectively, contained 95 kilograms of 

marijuana. 

Torres-Hernandez pled guilty, and he was held accountable for the full 

amount of marijuana (95 kilograms) that the four smugglers were jointly 

transporting. Torres-Hernandez had prior criminal convictions, including a 

conviction in 2010 for possession with intent to distribute 162.75 kilograms of 

marijuana. That offense was committed in the same manner, and in 

essentially the same location, as the offense that is the subject of this appeal. 

The presentence report calculated the advisory Guideline’s sentencing range 

to be 46 to 57 months of imprisonment. This calculation was based on an 

 

3 See U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (U.S. SENTENCING COMM’N 

2015) [hereinafter U.S.S.G.].

4 U.S.S.G. app. C, amend. 794, at 116-18 (Supp. Nov. 1, 2015).

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offense level of 19 and nine criminal history points, placing Torres-Hernandez 

in criminal history category IV. 

Torres-Hernandez objected to this calculation, contending that, under 

§ 3B1.2 of the Guidelines, he was entitled to a two-level reduction of his offense 

level because as a drug courier, he played only a minor role in the offense. At 

the sentencing hearing held on December 2, 2015, counsel argued that TorresHernandez should receive an adjustment based on Amendment 794 to the 

Guidelines, which had become effective one month earlier, on November 1, 

2015, because he was one of several men crossing the river with a backpack of 

marijuana, there was no evidence he was in possession of a radio or map, 

Torres-Hernandez did not know the ultimate destination of the drugs, and he 

did not have any authority to decide or influence the destination of the drugs. 

The prosecutor countered that Torres-Hernandez had previously 

committed the same offense, served 54 months of a mandatory 60 months’ 

prison sentence, had been deported in January 2014, and had committed the 

instant offense in the same manner and place less than one year later. The 

prosecutor argued that the district court could infer from this prior conviction 

that Torres-Hernandez had some knowledge of the drug trafficking 

organization and how it worked. The prosecutor also argued that TorresHernandez’s violation of the law was flagrant and warranted a sentence at the 

top of the advisory sentencing range. 

After hearing these arguments, the district court declined to grant a 

minor role adjustment and sentenced Torres-Hernandez to 57 months of 

imprisonment for the possession-with-intent-to-distribute offense. TorresHernandez was also in violation of his term of supervised release imposed for 

his prior drug trafficking offense, and the district court sentenced him to 18

months of imprisonment consecutive to the 57 months’ sentence. TorresHernandez appeals his 57 months’ sentence. The sentence for the violation of 

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supervised release imposed in the prior judgment of conviction is not at issue 

in this appeal. 

II 

Torres-Hernandez contends that Amendment 794 materially changed 

the factors that a sentencing court should consider in deciding whether to apply 

a mitigating role adjustment under § 3B1.2. He asserts that the district court 

misapplied the law in assessing whether he should have received a minor role 

adjustment. 

Section 3B1.2 of the Sentencing Guidelines instructs sentencing courts 

to decrease a defendant’s offense level by four levels “[i]f the defendant was a 

minimal participant in any criminal activity,” two levels “[i]f the defendant was 

a minor participant in any criminal activity,” and three levels if the defendant’s 

level of participation fell between minimal and minor.5 The commentary to 

§ 3B1.2 provides that a mitigating role adjustment is available to any 

defendant “who plays a part in committing the offense that makes him 

substantially less culpable than the average participant.”6 

Amendment 794 left the text of § 3B1.2 unchanged but made various 

revisions to the commentary.7 The Commission provided various reasons for 

the amendment. The Commission first explained that the amendment was a 

result of a study that, overall, found the mitigating role provision in the 

Guidelines “is applied inconsistently and more sparingly than the Commission 

intended.”8 The Commission then explained that “[i]n drug cases, the 

Commission’s study confirmed that mitigating role is applied inconsistently to 

 

5 U.S.S.G. § 3B1.2.

6 Id. § 3B1.2 cmt. n.3(A).

7 See U.S.S.G. app. C, amend. 794, at 117-18 (Supp. Nov. 1, 2015).

8 Id. at 117.

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drug defendants who performed similar low-level functions (and that rates of 

application vary widely from district to district).” The Commission continued, 

[f]or example, application of mitigating role varies along the 

southwest border, with a low of 14.3 percent of couriers and mules 

receiving the mitigating role adjustment in one district compared 

to a high of 97.2 percent in another. Moreover, among drug 

defendants who do receive mitigating role, there are differences 

from district to district in application rates of the 2-, 3-, and 4-level 

adjustments.9 

The amendment does not, however, impose any concrete requirements as to 

whether and when drug “couriers and mules,” like Torres-Hernandez, should 

receive a mitigating role adjustment and if so, which level of the three options 

should apply. Instead, the Commission provided “additional guidance” by 

“[s]pecifially . . . address[ing] a circuit conflict and other case law that may be 

discouraging courts from applying the adjustment in otherwise appropriate 

circumstances.”10 The Commission additionally provided “a non-exhaustive 

list of factors for the court to consider in determining whether an adjustment 

applies, and, if so, the amount of the adjustment.”11

With regard to the circuit conflict, the Commission noted that the 

Seventh and Ninth Circuits had concluded that the “average participant,” as 

used in § 3B1.2, “means only those persons who actually participated in the 

criminal activity at issue in the defendant’s case, so that the defendant’s 

culpability is determined only by reference to his or her co-participants in the 

case at hand.”12 The Commission observed that the First and Second Circuits 

had interpreted § 3B1.2 differently, “conclud[ing] that the ‘average participant’ 

 

9 Id. 10 Id. 11 Id. 12 Id. (citing United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006); United 

States v. Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994); United States v. DePriest, 6 F.3d 1201, 

1214 (7th Cir. 1993)). 

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also includes ‘the universe of persons participating in similar crimes.’”13 Under 

this latter approach, the Commission said that “courts will ordinarily consider 

the defendant’s culpability relative both to his co-participants and to the 

typical offender.”14 The Commission stated that Amendment 794 “generally 

adopts the approach of the Seventh and Ninth Circuits,” such that “when 

determining mitigating role, the defendant is to be compared with the other 

participants ‘in the criminal activity.’”15 The Commission explained that 

“[f]ocusing the court’s attention on the individual defendant and the other 

participants is more consistent with the other provisions of Chapter Three, 

Part B.”16

The Commission also reasoned that at least four Circuit Courts of 

Appeals had “denied [a defendant] a mitigating role adjustment solely because 

he or she was ‘integral’ or ‘indispensable’ to the commission of the offense.”17

Disagreeing with this approach, the Commission explained that Amendment 

794 “revise[d] the commentary to emphasize that ‘the fact that a defendant 

performs an essential or indispensable role in the criminal activity is not 

determinative’ and that such a defendant may receive a mitigating role 

adjustment, if he or she is otherwise eligible.”18 The commentary was amended 

to specify that “[t]he fact that a defendant performs an essential or 

indispensable role in the criminal activity is not determinative [and] [s]uch a 

defendant may receive an adjustment under this guideline if he or she is 

 

13 Id. (quoting United States v. Santos, 357 F.3d 136, 142 (1st Cir. 2004)) (citing United 

States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999)).

14 Id. 15 Id. 16 Id. (citing U.S.S.G. § 3B1.2 cmt. n.3(C)). 

17 Id. at 118 (citing United States v. Skinner, 690 F.3d 772,783-84 (6th Cir. 2012); 

United States v. Deans, 590 F.3d 907, 910 (8th Cir. 2010); United States v. Panaigua-Verdugo, 

537 F.3d 722, 725 (7th Cir. 2008); United States v. Carter, 971 F.2d 597, 600 (10th Cir. 1992)).

18 Id. (quoting U.S.S.G. § 3B1.2 cmt. n.3(C)).

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substantially less culpable than the average participant in the criminal 

activity.”19

The list of non-exhaustive factors added to the commentary by 

Amendment 794 directs a sentencing court to consider: 

(i) the degree to which the defendant understood the scope and 

structure of the criminal activity; 

(ii) the degree to which the defendant participated in planning 

or organizing the criminal activity; 

(iii) the degree to which the defendant exercised decision-making 

authority or influenced the exercise of decision-making 

authority; 

(iv) the nature and extent of the defendant’s participation in the 

commission of the criminal activity, including the acts the 

defendant performed and the responsibility and discretion 

the defendant had in performing those acts; 

(v) the degree to which the defendant stood to benefit from the 

criminal activity.20 

Amendment 794 provides that “a defendant who does not have a 

proprietary interest in the criminal activity and who is simply being paid to 

perform certain tasks should be considered for an adjustment under this 

guideline.”21 

III 

“The district court's ‘interpretation or application of the Sentencing 

Guidelines’ is reviewed de novo, while its factual findings are reviewed for clear 

error.”22 Whether a defendant “was a minor or minimal participant is a factual 

determination that we review for clear error.”23 In this context, we have held 

 

19 Id. at 116.

20 Id. 21 Id. 22 United States v. Lige, 635 F.3d 668, 670 (5th Cir. 2011) (quoting United States v. 

Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir.2008)).

23United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (quoting United 

States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).

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that “[a] district court's factual findings are not clearly erroneous if they are 

‘plausible in light of the record as a whole.’”24 We have further held that “[a]

party seeking an adjustment in the base level of an offense bears the burden 

of proving by a preponderance of the evidence that the adjustment is 

warranted.”25

The commentary to § 3B1.2 provides guidance for determining when a 

defendant who plays a part in committing the offense is “substantially less 

culpable than the average participant.”26 This part of the commentary, which 

was essentially unchanged by Amendment 794, explains: 

A defendant who is accountable under §1B1.3 (Relevant Conduct) 

only for the conduct in which the defendant personally was 

involved and who performs a limited function in the criminal 

activity may receive an adjustment under this guideline. For 

example, a defendant who is convicted of a drug trafficking offense, 

whose participation in that offense was limited to transporting or 

storing drugs and who is accountable under §1B1.3 only for the 

quantity of drugs the defendant personally transported or stored 

may receive an adjustment under this guideline.27

Torres-Hernandez relies heavily on this provision, but he does not come 

within its parameters. He was held accountable for more than “only . . . the 

quantity of drugs [he] personally transported.”28 He was held accountable for 

the entire quantity of drugs that the group of men transported. An example in 

the commentary to § 1B1.3 addresses the accountability for those who 

transport drugs in the manner that Torres-Hernandez did: 

Defendants T, U, V, and W are hired by a supplier to backpack a 

quantity of marihuana across the border from Mexico into the 

United States. Defendants T, U, V, and W receive their individual 

 

24 United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001) (quoting United States 

v. Alford, 142 F.3d 825, 831 (5th Cir.1998)). 

25 Id. 26 U.S.S.G. § 3B1.2 cmt. n.3(A).

27 Id. 28 Id. 

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shipments from the supplier at the same time and coordinate their 

importation efforts by walking across the border together for 

mutual assistance and protection. Each defendant is accountable 

for the aggregate quantity of marihuana transported by the four 

defendants. The four defendants engaged in a jointly undertaken 

criminal activity, the object of which was the importation of the 

four backpacks containing marihuana (subsection (a)(1)(B)), and 

aided and abetted each other's actions (subsection (a)(1)(A)) in 

carrying out the jointly undertaken criminal activity (which under 

subsection (a)(1)(B) were also in furtherance of, and reasonably 

foreseeable in connection with, the criminal activity).29

This example then contrasts when it would be appropriate to hold a defendant 

accountable only for the amount he transported: 

In contrast, if Defendants T, U, V, and W were hired individually, 

transported their individual shipments at different times, and 

otherwise operated independently, each defendant would be 

accountable only for the quantity of marihuana he personally 

transported (subsection (a)(1)(A)). As this example illustrates, the 

scope of the jointly undertaken criminal activity may depend upon 

whether, in the particular circumstances, the nature of the offense 

is more appropriately viewed as one jointly undertaken criminal 

activity or as a number of separate criminal activities. See 

Application Note 3(B).30

Accordingly, the statement in Application Note 3(A) of the Commentary to 

Guideline section 3B1.2 that “[a] defendant who is accountable under §1B1.3 

(Relevant Conduct) only for the conduct in which the defendant personally was 

involved and who performs a limited function in the criminal activity may 

receive an adjustment under this guideline” is inapplicable to TorresHernandez. 

Amendment 794’s explanation that “average participant,” as used in 

§ 3B1.2, “means only those persons who actually participated in the criminal 

activity at issue in the defendant’s case, so that the defendant’s culpability is 

 

29 U.S.S.G. § 1B1.3 n.4(C)(viii). 

30 Id.

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determined only by reference to his or her co-participants in the case at hand”31

also indicates that the district court correctly construed and applied this 

section of the Guidelines. The only evidence in the record regarding the 

participation of others in the possession of the 95 kilograms of marijuana for 

distribution pertains to the other individuals who had transported the drugs 

on their respective backs. Torres-Hernandez was no more or less culpable than 

the other transporters. He did not offer any evidence as to the participation, 

or expected participation, of others involved in the growing, further 

transportation, or intended sale of this marijuana. 

With regard to the factors added by Amendment 794 to the commentary 

accompanying § 3B1.2, the Commission expressly stated that they are nonexclusive, and they are only factors. We cannot say that the district court 

erred, clearly or otherwise, in applying these factors to the facts of this case. 

Torres-Hernandez certainly understood that he and those accompanying him 

were illegally transporting marijuana within the United States, as part of the 

distribution chain. There is no evidence as to his participation in planning or 

organizing the criminal activity, or the degree to which he exercised decisionmaking authority or influenced the exercise of that authority. This weighs in 

favor of an adjustment. The evidence is clear, however, as to the nature and 

extent of his participation in this criminal activity and the acts he performed. 

He participated in physically transporting the marijuana into the United 

States. He was paid for his participation, though the amount of his 

compensation does not appear to be in the record. Another consideration in 

the commentary to § 3B1.2 says that “a defendant who does not have a 

proprietary interest in the criminal activity and who is simply being paid to 

 

31 U.S.S.G. app. C, amend. 794, at 117 (Supp. Nov. 1, 2015) (citing United States v. 

Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006); United States v. Benitez, 34 F.3d 1489, 1498 

(9th Cir. 1994); United States v. DePriest, 6 F.3d 1201, 1214 (7th Cir. 1993)). 

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perform certain tasks should be considered for an adjustment.”32 There was 

no evidence as to whether Torres-Hernandez had a proprietary interest, but 

even if he did not, this is but one factor to be considered by the sentencing 

court. 

The Presentence Report does not discuss in any detail a mitigating role 

adjustment or any of the factors presented in the commentary. But that is not 

dispositive of whether the district court considered the various factors set forth 

in the commentary to § 3B1.2. Torres-Hernandez objected to the Presentence 

Report and argued that he was entitled to an adjustment because his role in 

the offense was minor. The arguments were before the district court. 

In contending that the district court incorrectly applied § 3B1.2, TorresHernandez relies primarily on the district court’s statement at the sentencing 

hearing that “getting the drugs into the United States is a critical role and is 

not a minor role by any means.” This is not an indication that the district court 

relied solely on its view that transporting the marijuana into this country was

a critical role in the offense. Counsel for Torres-Hernandez made arguments, 

based on Amendment 794 and the commentary to § 3B1.2, as to why TorresHernandez’s participation should be considered minor. The Government made 

counter arguments. The district court was not required to expressly weigh 

each factor in § 3B1.2 on the record. Based on the record of what was presented 

to the district court in Torres-Hernandez’s written objections, his arguments 

at the sentencing hearing, and the Government’s responses, the district court 

considered and rejected counsel’s arguments, not because the district court was 

unaware of or failed to consider the factors in the commentary to § 3B1.2, but 

because it weighed the factors and concluded that based on the offense charged, 

which was possession of a controlled substance for distribution, and the 

 

32 U.S.S.G. § 3B1.2 cmt. n.3(C).

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defendant’s role in that offense as compared to the others identified as 

participating, Torres-Hernandez was not entitled to an adjustment.33 The 

district court’s finding that Torres-Hernandez was not a minor participant and 

that he was not entitled to an adjustment is plausible based on the record. 

The commentary to § 3B1.2, including the explanations in Amendment 

794 for the revisions to that commentary, does not require, as a matter of law, 

that an adjustment must be made for transporters such as Torres-Hernandez. 

The commentary and Amendment 794 instead confirm that there are many 

factors that a sentencing court should consider, and how those factors are 

weighed remains within the sentencing court’s discretion. The Guidelines 

expressly provide that whether to grant a reduction in the offense level based 

on a defendant’s participation in the offense “involves a determination that is 

heavily dependent upon the facts of the particular case.”34

* * * 

We AFFIRM the district court’s judgment. 

 

33 See generally United States v. Morosco, 822 F.3d 1, 24 (1st Cir. 2016).

34 U.S.S.G. § 3B1.2 n.3(C).

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