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should not be published and is not precedent except under the limited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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40875

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

SONIA M OCHOA DE VILLAGOMEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:07-CR-10-1

Before GARWOOD, JOLLY, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Sonia Ochoa De Villagomez (Ochoa) appeals the sentence imposed

following her guilty plea conviction for importing approximately 37 kilograms of

cocaine. Ochoa argues that the district court abused its discretion by not

granting her a minor role adjustment because her role in the offense was that

of merely driving her vehicle across the border. She also argues that the district

court should have determined her role solely with respect to “this particular

narcotics transportation,” not her overall relevant conduct.

United States Court of Appeals

Fifth Circuit

F I L E D

October 17, 2008

Charles R. Fulbruge III

Clerk
No. 07-40875

2

This court reviews a district court’s interpretation of the Sentencing

Guidelines de novo and its factual findings for clear error. United States v.

Jaurez-Duarte, 513 F.3d 204, 208 (5th Cir.), cert. denied, 128 S. Ct. 2452 (2008).

“There is no clear error if the district court’s finding is plausible in light of the

record as a whole.” United States v. Harms, 442 F.3d 367, 378 (5th Cir. 2006),

cert. denied, 127 S. Ct. 2875 (2007).

“The determination of a defendant’s role in the offense is to be made on the

basis of all conduct within the scope of § 1B1.3 (Relevant Conduct) . . . and not

solely on the basis of elements and acts cited in the count of conviction.” Ch. 3,

Pt. D, intro. comment. Moreover, although a reduction for being a minor

participant is available for a defendant who performed a limited function in a

concerted criminal activity but was held accountable only for the conduct in

which he was personally involved, the defendant must have been “substantially

less culpable than the average participant.” United States v. Villanueva, 408

F.3d 193, 203 & n.9 (5th Cir. 2005) (citing U.S.S.G. § 3B1.2, comment. (n.3(A)).

Ochoa was the driver, sole occupant and owner of the vehicle in which the

cocaine was present in a false compartment in the gas tank.

The defendant bears the burden of proving entitlement to a minor role

adjustment. United States v. DeJesus-Bates, 410 F.3d 154, 163 (5th Cir. 2005).

See also United States v. Atanda, 60 F.3d 196, 198-99 (5th Cir. 1995). One may

be courier in a drug offense without being substantially less culpable than the

average participant. United States v. Buenrostro, 868 F.3d 135, 138 (5th Cir.

1989). 

The record does not support Ochoa’s argument that the district court

denied her the minor role adjustment based on an erroneous assessment of her

participation in a larger unidentified conspiracy. Rather, the district court

merely failed to accept Ochoa’s self-serving unsworn claim that she was only a

one-time courier. Further, because Ochoa, although she made an unsworn

statement, did not present any evidence rebutting the facts contained in the
No. 07-40875

3

PSR, the district court was free to adopt them. See United States v. Davis, 226

F.3d 346, 360 (5th Cir. 2000) (district court may adopt facts contained in the

PSR if they have an adequate evidentiary basis and the defendant does not

present rebuttal evidence).

Ochoa also argues that the district court erred when it failed to grant her

a downward departure for a serious medical condition. This court lacks

jurisdiction to review the district court’s denial of a downward departure unless

the district court mistakenly believed that it lacked the authority to depart

under the Guidelines. United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006).

The record does not indicate that the district court believed that it lacked the

authority to depart. Accordingly, this court lacks jurisdiction to review this

issue.

AFFIRMED.