IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-11059

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

GUADALUPE CASTRO, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, HAYNES, and GRAVES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal arises from a district court’s denial of

a mitigating role adjustment under U.S. Sentencing Guideline § 3B1.2. 

Because the court’s analysis was not clearly erroneous, we AFFIRM.

I.

On April 27, 2015, Guadalupe Castro and Cynthia Uribe were arrested 

for transporting six bricks of heroin weighing 5,992 grams in their vehicle, 

which Castro was driving. In post-arrest interviews, Castro and Uribe 

admitted to transporting narcotics for a drug trafficking organization (“DTO”). 

They confessed that, on at least two prior occasions, they had transported 

United States Court of Appeals

Fifth Circuit

FILED

December 12, 2016

Lyle W. Cayce

Clerk

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2

heroin from El Paso to the Dallas/Fort Worth area, receiving $2,000 each per 

trip. They also admitted to transporting heroin at least once to Albuquerque, 

New Mexico, receiving $1,000 each for that trip. 

On May 13, 2015, a federal grand jury charged Castro with one count of 

conspiracy to possess with intent to distribute a controlled substance. Castro 

pled guilty on June 26, 2015. 

During pre-sentencing, Probation did not recommend a mitigating role 

adjustment under § 3B1.2 in Castro’s Presentence Investigation Report 

(“PSR”). Despite Castro’s objection, in the PSR’s Addendum, Probation 

maintained that Castro was not entitled to a § 3B1.2 adjustment, stating that:

Using the current 2014 Sentencing Guidelines, [Castro] does not 

qualify for a mitigating role reduction based on her participation 

and involvement in the conspiracy. . . . [T]he Fifth Circuit held that 

the defendant must be ‘peripheral to the advancement of criminal 

activity.’ As a courier who committed drug-trafficking crimes on 

more than one occasion, the defendant is not peripheral to the 

advancement of criminal activity. In fact, a courier plays an 

integral role in moving narcotics north from Mexico, further into 

the United States.

The district court reviewed, among other sentencing items, the PSR, 

Addendum, and the arguments on Castro’s objection that she was entitled to a 

mitigating role adjustment. And, in a pre-sentencing order, it tentatively 

concluded that Castro’s objection was without merit.

At sentencing on October 9, 2015, the district court again denied Castro’s 

objection, explaining that it was “not persuaded that the defendant ha[d]

carried the defendant’s burden to prove the lower participant category.” The 

court then adopted the PSR’s and Addendum’s factual findings and conclusions 

as its own, as well as those expressed from the bench during the sentencing 

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hearing. And the court sentenced Castro to sixty months of imprisonment, 

supervised release for two years, and a special assessment of $100.1 

Castro has timely appealed. She asks this Court to vacate the district 

court’s judgment and remand for resentencing because: (1) the district court 

committed clear error by adopting Probation’s interpretation of § 3B1.2, which

Amendment 794 clarifies is the wrong standard because it focuses on the 

integral nature of Castro’s role in the drug conspiracy; and (2) the court’s error 

was not harmless. 

II.

The parties dispute whether Amendment 794 is retroactively applicable, 

which depends on whether the Amendment is substantive or clarifying. But 

we find it unnecessary to decide this question because we will treat the 

Amendment as if it were retroactively applicable, which will show that Castro 

does not benefit from the Amendment.2 Thus, the issue before us is whether 

the district court clearly erred by denying Castro a mitigating role adjustment 

under § 3B1.2 as modified by Amendment 794. 

 

1 Castro and Uribe fully cooperated with law enforcement. They described the process 

of getting heroin into the United States and returning money to Mexico. They also identified 

stash houses, the source of the heroin in Mexico, the source’s house in Mexico, and individuals 

they delivered heroin to in North Texas and New Mexico. Consequently, the court departed 

twenty-seven months downward from the guideline range based on the Government’s 5K1.1 

motion. 

2 We recognize that the Ninth and Eleventh Circuits have held that Amendment 794 

is a clarifying amendment. United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 

2016); United States v. Casas, 632 F. App’x 1003, 1005 (11th Cir. 2015). But the First Circuit 

and other panels of this Court have declined to decide whether the Amendment is clarifying 

or substantive for the same reason that we do here: the defendant could not prevail, even if 

the Amendment were retroactively applicable. United States v. Cumby, No. 15-10665, slip 

op. at 6 (5th Cir. July 7, 2016) (unpublished and sealed); United States v. Gomez-Valle, 828 

F.3d 324, 331 (5th Cir. 2016); United States v. Morosco, 822 F.3d 1, 24 (1st Cir. 2016). 

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A.

It is necessary to describe § 3B1.2 and Amendment 794’s impact on it

before considering whether the district court erred in its applica-tion of § 

3B1.2. When Castro was sentenced, the 2014 Sentencing Guidelines were in 

effect. Section 3B1.2 provided: 

Based on the defendant’s role in the offense, decrease the offense 

level as follows: 

(a) If the defendant was a minimal participant in any 

criminal activity, decrease by 4 levels. 

(b) if the defendant was a minor participant in any criminal 

activity, decrease by 2 levels. 

In cases falling between (a) and (b), decrease by 3 levels. 

The 2014 commentary explained that the decision to apply an 

adjustment is “heavily dependent on the facts” and “based on the totality of the 

circumstances.” U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 cmt. n.3(C) 

(U.S. SENTENCING COMM’N 2014) [hereinafter 2014 MANUAL]. But a “range of 

adjustments” is available for a defendant who “plays a part in committing the 

offense that makes him substantially less culpable than the average 

participant.” Id. at n.3(A) (emphasis added). A “minimal participant” is a 

defendant who is “plainly among the least culpable of those involved in the 

conduct of a group.” Id. at n.4. A “defendant’s lack of knowledge or 

understanding of the scope and structure of the enterprise and of the activities 

of others is indicative of a role as a minimal participant.” Id. By contrast, a 

“minor participant” is a defendant “who is less culpable than most other 

participants, but whose role could not be described as minimal.” Id. at n.5. 

When Castro was sentenced, Amendment 794 was not yet effective. 

Sentencing Guidelines for United States Courts, 80 Fed. Reg. 25,782, 25,782 

(May 5, 2015) (stating that Amendment 794 was effective on November 1, 

2015). Prompted by a study that found that § 3B1.2 “is applied inconsistently 

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and more sparingly than the Commission intended,” the Sentencing 

Commission passed Amendment 794 to resolve “a circuit conflict” and 

“provide[] additional guidance . . . in determining whether a mitigating role 

adjustment applies.” U.S. SENTENCING GUIDELINES MANUAL: SUPPLEMENT TO 

APPENDIX C amend. 794, at 117 (U.S. SENTENCING COMM’N 2015) [hereinafter 

2015 MANUAL]. Amendment 794 “left the text of § 3B1.2 unchanged but made 

various revisions to the commentary.” United States v. Gomez-Valle, 828 F.3d 

324, 328 (5th Cir. 2016). 

Four revisions are important here. First, the Commission specified that 

the “average participant” inquiry requires courts to compare the defendant 

“with the other participants ‘in the criminal activity.’” 2015 MANUAL, amend. 

794, at 117. Second, the Commission explained that “[t]he fact that a 

defendant performs an essential or indispensable role in the criminal activity 

is not determinative. Such a defendant may receive an adjustment . . . if he or 

she is substantially less culpable than the average participant in the criminal 

activity.” Id. at 116 (emphasis added). Third, the Commission added a “nonexhaustive list of factors for [courts] to consider in determining whether to 

apply a[n] . . . adjustment and, if so, the amount of the adjustment.” Id. at 

118.3 Finally, the Commission stated that “a defendant who does not have a 

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

 

3 The factors are as follows: (1) “the degree to which the defendant understood 

the scope and structure of the criminal activity”; (2) “the degree to which the defendant 

participated in planning or organizing the criminal activity”; (3) “the degree to which 

the defendant exercised decision-making authority or influenced the exercise of 

decision-making authority”; (4) “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”; and 

(5) “the degree to which the defendant stood to benefit from the criminal activity.” Id.

at 116.

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perform certain tasks should be considered for an adjustment under this 

guideline.” Id. at 116. 

B.

We now turn to the crux of this appeal: whether the district court clearly 

erred by not granting Castro a mitigating role adjustment under § 3B1.2 as 

modified by Amendment 794, assuming arguendo that Amendment 794 

applies. “Whether [a defendant] was a minor or minimal participant is a 

factual determination that [we] review for clear error. A factual finding is not 

clearly erroneous if it is plausible in light of the record read as a whole.” United 

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

Castro argues that the district court erred by adopting the Addendum, 

which contained Probation’s interpretation of § 3B1.2. The Addendum, Castro 

claims, did not consider Amendment 794’s factors or compare her to others and 

incorrectly focused on whether she played an integral role in the offense—a 

factor that was never part of the analysis. Moreover, she played a lesser role 

in the drug conspiracy than others in the DTO.

The Government counters that Castro has not demonstrated clear error. 

The court did not solely base its decision on the Addendum. It also considered 

Castro’s arguments based on the factors outlined in Amendment 794, her 

conduct, the benefit she received for her involvement, the conduct of her coparticipants, and her knowledge of the DTO, which supported a Section 5K1.1 

downward departure. The court denied the reduction because it simply was 

not persuaded that Castro was substantially less culpable than the average 

participant. 

We agree with the Government that the district court did not clearly err 

in denying Castro the mitigating role adjustment. “Amendment 794 does not 

provide an affirmative right to a § 3B1.2 reduction to every actor but the 

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criminal mastermind.” Gomez-Valle, 828 F.3d at 331 (emphasis in original). 

Castro could “be a courier without being substantially less culpable than the 

average participant.” E.g., United States v. Buenrostro, 868 F.2d 135, 138 (5th 

Cir. 1989). And Castro bore “the burden of proving by a preponderance of the 

evidence that the adjustment [was] warranted.” United States v. Miranda, 248 

F.3d 434, 446 (5th Cir. 2001).

The district court’s conclusion that Castro did not meet her burden is 

plausible in the light of the whole record. First, the determination of whether

Castro was “integral” to the offense is still part of § 3B1.2’s analysis. 

Amendment 794’s commentary states that a court should not refuse an 

adjustment “solely because” a defendant was “‘integral’ or ‘indispensable’ to 

the commission of the offense.” 2015 MANUAL, amend. 794, at 118. Because 

that fact “is not determinative,” judges should also ponder whether a defendant 

is “substantially less culpable than the average participant in the criminal 

activity.” Id. at 116. In short, a court does not err by taking into account a 

defendant’s integral role in an offense when deciding whether she is entitled 

to a § 3B1.2 adjustment, as long as her role is not the sole or determinative 

factor in its decision. 

By adopting the Addendum’s conclusions, the district court indicated 

that Castro’s integral role in the drug trafficking conspiracy was a factor in its

decision to deny the adjustment, but the record does not support Castro’s

contention that this was the determinative or sole factor. The court had before 

it the evidence presented at the sentencing hearing, the PSR, the Addendum, 

and the parties’ arguments over Castro’s objections to the PSR and Addendum. 

This evidence detailed Castro’s conduct in the conspiracy, as well as the 

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conduct of other participants in the DTO,4 including that of her co-transporter 

Uribe (who received the same sentence as Castro). It also provided the court 

with Amendment 794’s relevant language and comparative analysis factors

and explained how they applied to Castro. The pre-sentencing order and 

holding at sentencing demonstrate that the court considered Castro’s

arguments: it simply found them without merit and was not persuaded that 

Castro had carried her burden of proof.5

Finally, the district court’s rulings highlight the fundamental flaw in

Castro’s position: Castro bore the burden of proof, but she did not make the 

showing that § 3B1.2 requires. As the commentary makes clear, § 3B1.2’s basic 

inquiry is whether a defendant “play[ed] a part in committing the offense that 

makes [her] substantially less culpable than the average participant” “in the 

criminal activity.” 2015 MANUAL, amend. 794, at 116–17; 2014 MANUAL, § 

3B1.2 cmt. n.3(A). Contrary to her assertion, Castro is not entitled to a § 3B1.2 

adjustment just because she played a lesser role than others in the criminal 

activity. Castro is only entitled to a mitigating role adjustment if she showed

by a preponderance of the evidence: (1) the culpability of the average 

 

4 The district court was aware of, among others, the individuals: (1) who loaded and 

unloaded the drugs into Castro and Uribe’s vehicle on multiple trips; (2) who took Castro and 

Uribe to a dealership to buy the vehicle they used to transport drugs; (3) who directed them 

to the intended recipients of the drugs; (4) who was the source of the heroin in Mexico; and 

(5) who they delivered heroin to in North Texas and New Mexico. 

5 The court did not err by not expressly weighing Amendment 794’s factors. “[T]he 

Commission expressly stated that [the factors] are nonexclusive, and they are only factors.” 

United States v. Torres-Hernandez, No. 15-41654, 2016 WL 7118458, at *5 (5th Cir. Dec. 6, 

2016). Moreover, the district court had enough evidence in the record before it to weigh the 

Amendment’s factors. And because the parties spent significant time briefing the issue, “we 

can infer the judge considered and rejected defense counsel’s points before selecting the 

sentence.” Morosco, 822 F.3d at 24. 

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participant in the criminal activity;6 and (2) that she was substantially less 

culpable than that participant. 

Castro did not make either showing. She never showed the culpability 

of the average participant in the drug trafficking conspiracy. And she certainly

did not show that she was substantially less culpable than the average 

participant, even assuming arguendo that the “average participant” was other

drivers in the DTO or other participants in the DTO who were in possession of 

heroin with the intent to distribute. This Court has repeatedly explained that

“[i]t is improper for a court to award a [§ 3B1.2] adjustment simply because a 

defendant does less than the other participants[:] . . . the defendant must do 

enough less so that [s]he at best was peripheral to the advancement of the illicit 

activity.” E.g., United States v. Thomas, 932 F.2d 1085, 1092 (5th Cir. 1991). 

Castro, together with Uribe, helped acquire license plates for a vehicle used to 

transport drugs, traveled thousands of miles on multiple trips for the DTO, 

delivered kilogram amounts of heroin for the DTO, and repeatedly took drug 

proceeds back to the DTO. Given this and the other information the court had 

before it, it is certainly plausible that Castro was not substantially less 

culpable than the average participant. See Torres-Hernandez, 2016 WL 

7118458, at *5. Consequently, the court did not clearly err in denying Castro 

a § 3B1.2 adjustment. 

III.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

 

6 The criminal activity is the crime with which Castro was charged (conspiracy to 

possess with intent to distribute a controlled substance). 

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JAMES E. GRAVES, JR., Circuit Judge, dissenting:

Because I would conclude that Amendment 794 is clarifying and that the 

district court clearly erred in denying the mitigating role adjustment, I 

respectfully dissent.

U.S.S.G. §3B1.2 provides that: 

Based on the defendant's role in the offense, decrease the offense 

level as follows:

(a) If the defendant was a minimal participant in any 

criminal activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any criminal 

activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

U.S.S.G. §3B1.2. 

The commentary to 3B1.2 provides that there are a range of adjustments 

available for a defendant who plays a part in an offense making him 

“substantially less culpable than the average participant.” An example is “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 1.3 only for the quantity of drugs the defendant personally 

transported or stored may receive an adjustment under this guideline.” 

U.S.S.G. § 3B1.2, cmt. n.3(A) (emphasis added). A “minimal participant” is a 

defendant who is “plainly among the least culpable of those involved in the 

conduct of a group” and a “defendant’s lack of knowledge or understanding of 

the scope and structure of the enterprise and of the activities of others is 

indicative of a role as a minimal participant.” U.S.S.G. § 3B1.2, cmt. n.3(A), 4. 

Whereas a “minor participant” is a defendant “who is less culpable than most

other participants, but whose role could not be described as minimal.” U.S.S.G. 

§ 3B1.2, cmt. n.5.

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The commentary to 3B1.2 was amended after Castro was sentenced. 

Amendment 794, which went into effect on November 1, 2015 states that it:

[P]rovides additional guidance to sentencing courts in determining 

whether a mitigating role adjustment applies. Specifically, it 

addresses a circuit conflict and other case law that may be 

discouraging courts from applying the adjustment in otherwise 

appropriate circumstances. It also provides 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.

U.S.S.G. Manual, supp. to app. C, amend. 794 at 116, 80 Fed. Reg. 25,782-01, 

25,792-93, 2015 WL 1968941 (May 5, 2015). The amendment added to Note 

3(C) the following:

In determining whether to apply subsection (a) or (b), or an 

intermediate adjustment, the court should consider the following 

non-exhaustive list of factors:

(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 decisionmaking authority or influenced the exercise of decisionmaking 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.

For example, 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.

The fact that a defendant performs an essential or 

indispensable role in the criminal activity is not determinative. 

Such a defendant may receive an adjustment under this guideline 

if he or she is substantially less culpable than the average 

participant in the criminal activity.

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U.S.S.G. § 3B1.2, cmt. n.3(C).

While the issue of whether Amendment 794 is clarifying or substantive 

has been previously presented, this court has declined to address it, as does 

the majority here. See United States v. Gomez-Valle, 828 F.3d 324, 330-31 (5th 

Cir. 2016) (“We conclude that it is unnecessary to resolve whether Amendment 

794 was a substantive change or instead only clarifying because even if it were 

applied retroactively, it would not affect Gomez-Valle’s sentence.”; 

“[A]ssuming, without deciding, that Amendment 794 is ‘clarifying’ and should 

be considered on appeal, it does not affect the outcome in this case.”). See also

United States v. Cumby, No. 15-10665, slip op. at 6 (5th Cir. July 7, 2016) 

(unpublished and sealed). However, the Ninth and Eleventh circuits have 

already held that this amendment is clarifying and, thus, applies retroactively. 

See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016); United 

States v. Casas, 632 F. App’x 1003, 1005 (11th Cir. 2015). 

Regardless of whether the Commission explicitly stated that the 

amendment is clarifying, the language of the amendment is clearly intended 

to be clarifying and merely confirms the result [a court] would reach apart from 

it.” United States v. Huff, 370 F.3d 454, 466 & n.19 (5th Cir. 2004). Further, 

the only altered language is in the commentary – not in the guideline itself. 

Id. With regard to the amendment not being listed as applying retroactively, 

this court has allowed amendments that conflict with its prior interpretation 

to apply retroactively. United States v. Palacios, 756 F.3d 325, 326 (5th Cir. 

2014); United States v. Fitzhugh, 954 F.2d 253, 255 (5th Cir. 1992). Thus, I 

would conclude that the amendment is clarifying.

The majority concludes that, even if the amendment is clarifying, the 

district court’s decision that Castro was not entitled to a mitigating role 

reduction was not clearly erroneous. I disagree. Probation incorrectly focused 

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on whether Castro played an integral role, which is not the determining factor. 

(“In fact, a courier plays an integral role in moving narcotics north from 

Mexico, further into the United States.”) The district court also adopted the 

supplemented PSR. The majority essentially concludes that the district court 

denied the reduction because it was not persuaded that Castro was not 

integral. In other words, the district court appears to have “solely” based its 

decision on Castro’s integral role. That is error. 

Additionally, the record indicates that Castro was indeed “substantially 

less culpable.” The fact that Castro and Uribe received the same sentence is 

of no significance. Uribe’s case or whether she is entitled to the adjustment is 

not before this court. We are only concerned with the actual conduct of the 

various parties in the conspiracy. Even as between Castro and Uribe, Castro 

is less culpable. Castro was driving Uribe’s vehicle – they were merely 

splitting the driving time. Other individuals loaded and unloaded the drugs. 

The $697 was located in Uribe’s purse. Uribe admitted that she had 

transported narcotics multiple times, but was not always accompanied by 

Castro. Neither Castro nor Uribe appears to have understood the scope of the 

activity, i.e., they both thought they were transporting cocaine. There is no 

indication that Castro participated in planning or organizing the distribution, 

that she had any decision-making authority, or that she had any proprietary 

interest – she was merely being paid a flat fee to perform a task. The 

commentary explicitly provides that those are all factors to be considered in 

determining whether a mitigating role adjustment should apply. 

Castro is clearly less culpable than the suppliers or the importers or the 

people who accepted delivery of the drugs or arranged all of the details or paid 

them, or the individual who picked her and Uribe up, secured a hotel room for 

them, purchased a new car registered to Uribe and arranged for new tags when 

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the car broke down. Those individuals would be the average participants and 

these facts indicate that Castro was substantially less culpable than the 

average participants.1 Further, Castro, who was a flat fee driver, did not have 

a “proprietary interest,” was “simply being paid to perform certain tasks” and 

was “peripheral to the advancement of the illicit activity.” See United States 

v. Thomas, 932 F.2d 1085, 1092 (5th Cir. 1991); see also U.S.S.G. § 3B1.2, cmt. 

n.3(A),(C). Clearly, Castro should be considered for an adjustment even if her 

role as a driver was essential or indispensable to the criminal activity. 

Accordingly, I would conclude that the district court erred in denying the 

adjustment. Moreover, the district court also had the option of granting Castro 

a minimal participant adjustment or an adjustment as a participant whose 

culpability fell between that of a minor and a minimal participant. With a 

minor-role adjustment and based on U.S.S.G. § 2d1.1(a)(5), Castro’s guideline 

range would have fallen from 87-108 months to 51-63 months. With a minimal 

participant adjustment, the range would fall to 41-51 months. Thus, the error 

was not harmless. 

 For these reasons, I would reverse and remand for resentencing. 

Therefore, I respectfully dissent. 

 

1 The majority states that Castro did not show that she was less culpable than the 

“average participant, even assuming arguendo that the ‘average participant’ was other 

drivers . . . .” However, it is unclear as to what other drivers the majority is referring other 

than Uribe. Also, the record does not support the majority’s assertion that Castro helped 

acquired license plates for the DTO’s vehicle. The vehicle was registered to Uribe and the 

plates were picked up from an individual in Fort Worth. Additionally, Castro did not know 

the amounts of currency transported on return trips. 

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