IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40191

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ROBERTO SALAZAR CUELLAR,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:09-CR-2142-2

Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:

*

Jose Roberto Salazar Cuellar (Salazar) pleaded guilty to conspiring to

possess with intent to distribute in excess of one kilogram of heroin, possessing

with intent to distribute in excess of one kilogram of heroin, and importing into

the United States more than one kilogram of heroin. He appeals the 188-month

sentence imposed upon his conviction. He argues that the district court erred

in (1) determining the drug quantity attributable to him under the Guidelines,

(2) applying a two-level enhancement pursuant to U.S.S.G. § 3B1.1(c) on the

United States Court of Appeals

Fifth Circuit

F I L E D

January 5, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-40191

basis that he occupied a leadership role, (3) applying a two-level enhancement

pursuant to U.S.S.G. § 3B1.4 for use of a minor in connection with the offense;

and (4) denying him safety-valve relief under U.S.S.G. § 5C1.2.

Salazar has not shown that the district court clearly erred in holding him

accountable for more than 3 but less than 10 kilograms of heroin for purposes of

sentencing. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005);

U.S.S.G. § 2D1.1 (applying a base offense level of 34 to offenses involving at least

3 kilograms but less than 10 kilograms of heroin). Salazar conceded that the

instant offense involved 2.476 kilograms of heroin. The record supports that he

previously completed at least two smuggling trips for the same organization –

which was associated with other attempts to smuggle heroin – and was paid

identically for this trip and each of his prior trips. Thus, the district court could

have inferred that Salazar smuggled a similar amount of heroin on each trip.

See United States v. Medina, 161 F.3d 867, 877 (5th Cir. 1998). Because the

record supports that Salazar’s prior trips involved at least .524 kilograms of

heroin, the district court’s quantity finding was plausible in light of the record

as a whole. See Medina, 161 F.3d at 877.

Salazar’s challenge to the two-level adjustment pursuant to § 3B1.1(c) also

lacks merit. A defendant qualifies for a § 3B1.1 adjustment if he was the

organizer, leader, manager, or supervisor of one or more other participants.

§ 3B1.1, comment. (n.2). While Salazar asserts that he and his wife participated

equally in the instant offense, the record supports that Salazar recruited his wife

to participate in the offense because he believed that her participation would

reduce the likelihood of detection. See § 3B1.1, comment. (n.4) (noting that twolevel adjustment is warranted if defendant, inter alia, recruits accomplices).

Moreover, the record indicates that Salazar directed his wife with respect to the

manner in which the offense should be completed, i.e., he instructed his wife

regarding the logistics of the offense and commanded her to perform particular

acts. See United States v. Turner, 319 F.3d 716, 725 (5th Cir. 2003). Thus,

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Salazar has not shown that the district court clearly erred in applying an

enhancement under § 3B1.1(c). See United States v. Rose, 449 F.3d 627, 633 (5th

Cir. 2006).

Salazar’s contention that he should not have been assessed an adjustment

under § 3B1.4 is likewise unavailing. Section 3B1.4 provides that a defendant

who “used or attempted to use a person less than eighteen years of age to commit

the offense or assist in avoiding detection of, or apprehension for, the offense” is

subject to a two-level sentence enhancement. § 3B1.4. While Salazar argues

that his child merely was present during the smuggling attempt, Salazar hid the

heroin within a child car seat on which his son was seated during the attempt.

The district court plausibly could have inferred that the child was included to

reduce suspicion and to facilitate passage across the border without agents

detecting the presence of heroin. See United States v. Mata, — F.3d —, No. 09-

41092, 2010 WL 4009880, at *3 (5th Cir. Oct. 14, 2010). Because the record does

not contain the basis for the sentencing judge’s decision to deny Salazar’s wife

a similar § 3B1.4 adjustment, we are unable to determine whether any disparity

in the application of the adjustment was unwarranted.

Finally, Salazar’s contention that the district court erred when it denied

him a safety valve reduction is without merit. Salazar argues that the district

court’s determination that he was not eligible for a safety valve reduction was

based on its erroneous conclusion that he was an organizer or leader. Because

the district court did not clearly err in determining that Salazar was an

organizer or leader pursuant to § 3B1.1(c), he was ineligible for a safety valve

reduction. See U.S.S.G. § 5C1.2(a)(4). Therefore, Salazar has not shown clear

error. See United States v. Miller, 179 F.3d 961, 963-64 (5th Cir. 1999).

Accordingly, the district court’s judgment is AFFIRMED

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