IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40126

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

JORGE EDUARDO CHANES-HERNANDEZ, 

 Defendant–Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 1:15-CR-730-1

Before KING, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Jorge Eduardo Chanes-Hernandez was indicted under 21 U.S.C. 

§§ 841(a)(1), 841(b)(1)(B), 846 and 18 U.S.C. § 2, for possessing with intent to 

distribute 100 kilograms or more of marijuana. He pled guilty and was 

sentenced to 30 months of imprisonment. He appeals this sentence, contending

 

* Pursuant to 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 6, 2016

Lyle W. Cayce

Clerk

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that the district court misapplied § 3B1.2 of the Sentencing Guidelines1 and 

erred in failing to grant a mitigating role adjustment.2 We affirm.

I

Border Patrol agents in Cameron County, Texas saw signs of foot traffic 

and a cellophane wrapper on a trail. They searched the area, following pieces 

of cellophane wrappers, and found ten bundles of marijuana and seven people, 

including Chanes-Hernandez, located within 50 to 300 yards of the bundles. 

All of the seven subjects who were detained had strap markings on their 

shoulders. The bundles collectively contained 729 pounds (330 kilograms) of 

marijuana. Ultimately, Chanes-Hernandez was the only suspect who was 

indicted for the drug trafficking offense. He confessed that he knew he was 

transporting a controlled substance illegally within the United States and said 

that he was to have been paid $250.

The district court accepted Chanes-Hernandez’s guilty plea, and at 

sentencing, he was held accountable for the entire amount of marijuana seized. 

He does not challenge that determination. The Presentencing Report (PSR) 

calculated an advisory Guidelines range of 30 to 37 months of imprisonment. 

The PSR had recommended that Chanes-Hernandez not receive a reduction 

under § 3B1.2, which is entitled “Mitigating Role,” and he filed a motion 

seeking an adjustment to his offense level, contending that his role was minor. 

The district court denied that motion and sentenced him to 30 months of 

imprisonment. This appeal followed. 

 

1 U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (U.S. SENTENCING COMM’N 2015) 

[hereinafter U.S.S.G.].

2 See id.

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II

Chanes-Hernandez was sentenced January 25, 2016, after Amendment 

794, which amended the commentary to § 3B1.2, became effective November 

1, 2015. The parties agree that the amended commentary to § 3B1.2 applies, 

and sentencing courts generally apply “the Guidelines Manual in effect at the 

date of sentencing.”3 The motion that Chanes-Hernandez filed seeking a 

reduction of his offense level, and his arguments to the district court at the 

sentencing hearing in support of that motion, relied on Amendment 794. There 

is no contention that the district court applied the version of § 3B1.2 in effect 

prior to the November 1, 2015 amendments. Chanes-Hernandez contends only 

that the district court misconstrued and misapplied the commentary to

§ 3B1.2, as amended.

We recently issued a published decision involving very similar facts, in 

United States v. Torres-Hernandez.4 In the interest of brevity, we will not 

repeat that opinion’s discussion of the reasons the Commission expressed for 

promulgating Amendment 794.5

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

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

error.”6 Whether a defendant “was a minor or minimal participant is a factual 

determination that we review for clear error.”7 In this context, we have held 

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

 

3 See United States v. Gomez-Valle, 828 F.3d 324, 330 (5th Cir. 2016); United States v. 

Huff, 370 F.3d 454, 465 (5th Cir. 2004); accord U.S.S.G. § 1B1.11(a). 4 __ F.3d __ (5th Cir. 2016).

5 See id. 6 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)).

7 Gomez-Valle, 828 F.3d at 327 (quoting United States v. Villanueva, 408 F.3d 193, 

203 (5th Cir. 2005)).

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‘plausible in light of the record as a whole.’”8 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.”9

In his motion in the district court for a mitigating role adjustment under 

§ 3B1.2, Chanes-Hernandez cited Application Note 3(A), contending that his 

participation in the offense was limited to transporting drugs and that he was

held accountable under § 1B1.3 of the Guidelines only for the quantity he 

personally transported. Chanes-Hernandez reasserts this argument on 

appeal. However, he is incorrect both as to the facts and as to what the 

Guidelines provide. Application Note 3(A) 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.”10 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.11

Chanes-Hernandez was held accountable for more than “only . . . the 

quantity of drugs [he] personally transported.”12 He was held accountable for 

 

8 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)). 9 Id. (citing United States v. Patterson, 962 F.2d 409, 414 (5th Cir. 1992)). 10 U.S.S.G. § 3B1.2 n.3(A).

11 Id. 12 Id.

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the 729 pounds (330 kilograms) of marijuana that the group of which he was a 

part transported. An example in Application Note 4(C)(viii) to § 1B1.3 

addresses the culpability of transporters such as Chanes-Hernandez:

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 

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).13

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).14

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

 

13 Id. § 1B1.3 n.4(C)(viii).

14 Id.

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limited function in the criminal activity may receive an adjustment under this 

guideline” is inapplicable to Chanes-Hernandez.

In his motion in the district court for a mitigating role adjustment, 

Chanes-Hernandez quoted Application Note 3(C) to § 3B1.2, which 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.”15 As noted, ChanesHernandez told authorities when he was apprehended that he was to have 

been paid $250 for transporting marijuana. However, the commentary’s 

statement that a defendant who comes within this parameter should be 

considered for an adjustment is not a requirement that the district court grant 

an adjustment. It is one of many factors to be considered by a sentencing court.

Chanez-Hernandez also contended in his motion that he lacked 

knowledge of the scope and structure of the enterprise and did not participate 

in planning or organizing the criminal activity. While Chanez-Hernandez may 

not have been aware of the entire scope or structure of the activity and may 

not have participated in planning or organizing the possession of this 

marijuana by the transporters, he was certainly aware that the ten bundles of 

a controlled substance, a substantial amount, was being transported by a 

group illegally. He also knew that the purpose of his activity was to further 

the distribution and sale of this large quantity of a controlled substance within 

the United States. The street value of the marijuana was approximately 

$583,000.

At the sentencing hearing, the district court treated the motion for a 

mitigating role adjustment as an objection to the PSR and overruled the 

objection, stating: “I’m going to overrule the objection. I found that his role 

 

15 Id. § 3B1.2 n.3(C).

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was a critical function in bringing the drugs in the United States and he was 

not [a] minor participant.” Counsel for Chanes-Hernandez then called the 

district court’s attention to the statement in the commentary to § 3B1.2 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 under this guideline if he or she is substantially less culpable than 

the average participant in the criminal activity.”16 Counsel then reiterated 

arguments that Chanes-Hernandez did not plan the offense and did not have 

a proprietary interest in the drugs. The district court was unpersuaded and 

denied the objection to the PSR.

On appeal, Chanes-Hernandez contends that the district court 

misapplied the Guidelines and gave controlling weight to a single factor. 

Chanes-Hernandez relies on the district court’s statement at the sentencing 

hearing that Chanes-Hernandez’s “role was a critical function in bringing the 

drugs in the United States.” As an initial matter, we do not take the district 

court’s statement to mean that it based its decision to deny an offense 

adjustment solely on this finding. The district court also stated “and [ChanesHernandez] was not [a] minor participant.” This factual finding is supported 

by many of the factors set forth in the commentary to § 3B1.2. We do not view 

the district court’s brief statement as encompassing all of its findings and 

conclusions and excluding all others. The district court was not required to 

state on the record how it weighed each of the many considerations set forth in 

§ 3B1.2.

The record, when viewed as a whole, reflects that Chanes-Hernandez’s 

arguments were presented in writing and orally to the district court and that 

the district court considered them. The district court had the facts and 

 

16 Id.

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competing conclusions that could be drawn from them before it. The court’s 

factual finding that Chanes-Hernandez was not a minor participant is not 

clearly erroneous.

In addition to the factors discussed above, the evidence fully supports 

the district court’s implicit conclusion that Chanes-Hernandez was not 

substantially less culpable than the average participant in the criminal offense 

of which he was convicted. Amendment 794 explains 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 relative culpability is determined only by reference to his or 

her co-participants in the case at hand.”17 Chanes-Hernandez was no more or 

less culpable than the other transporters of the marijuana. There was no

evidence as to the participation, or expected participation, of others involved 

in this offense.

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

adjustment. But that is not dispositive of whether the district court considered 

the various factors set forth in the commentary to § 3B1.2. 

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 Chanes-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 

 

17 U.S.S.G. app. C, amend. 794, at 116-18 (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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on a defendant’s participation in the offense “involves a determination that is 

heavily dependent upon the facts of a particular case.”18

* * *

We AFFIRM the district court’s judgment. 

 

18 U.S.S.G. § 3B1.2 n.3(C).

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