United States v. Jose Bazan

Opinion

Case: 18-40725 Document: 00515014633 Page: 1 Date Filed: 06/28/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals

No. 18-40725 Fifth Circuit

FILED Summary Calendar June 28, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

v.

JOSE ARMANDO BAZAN,

Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:16-CR-1376-4

Before SMITH, WIENER, and WILLETT, Circuit Judges. PER CURIAM: * Defendant-Appellant Jose Armando Bazan appeals the 24-month sentence imposed in connection with his conviction for conspiracy to possess with the intent to distribute 500 grams or more of cocaine. For the first time on appeal, Bazan contends that the district court plainly erred in failing to award an offense level reduction under U.S.S.G. § 3B1.2 for having a mitigating role in the offense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 18-40725 Document: 00515014633 Page: 2 Date Filed: 06/28/2019

No. 18-40725

Whether Bazan was a minor or minimal participant under § 3B1.2 is a factual determination. See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). Because this issue was a question of fact capable of resolution at sentencing, the issue “can never constitute plain error.” United States v. Fierro, 38 F.3d 761, 774 (5th Cir. 1994). Accordingly, the judgment of the district court is AFFIRMED.