United States v. Pando

Opinion

Case: 22-50714 Document: 00516816694 Page: 1 Date Filed: 07/11/2023

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals Fifth Circuit

No. 22-50714 Summary Calendar FILED ____________ July 11, 2023 Lyle W. Cayce

United States of America, Clerk

Plaintiff—Appellee,

versus

Jaime Pando,

Defendant—Appellant.

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Appeal from the United States District Court for the Western District of Texas USDC No. 7:22-CR-69-1

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Before Smith, Higginson, and Engelhardt, Circuit Judges. Per Curiam: * Jaime Pando appeals his sentence for conspiracy to possess with intent to distribute, and distribute, five grams or more of methamphetamine (“meth”). Finding no error, we affirm.

Pando maintains that the district court erred by refusing a mitigatingrole adjustment even though he acted as a minor participant for purposes of U.S.S.G. § 3B1.2. Pando contends that during the time of his arrest, a co-

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50714 Document: 00516816694 Page: 2 Date Filed: 07/11/2023

No. 22-50714

conspirator gave him the meth to attempt to distance himself from the offense conduct. Pando states that the drug operation was relatively small and that his actions were dissimilar compared to those of other participants. Pando avers he was not the source of the meth, nor did he receive a larger share of the drug proceeds. He also posits that he is not the mastermind of the conspiracy and did not perform tasks crucial to the success of the enterprise.

Whether a defendant is a minor or minimal participant is a factual determination reviewed for clear error. United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (citation omitted). “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” Id. “[W]hen a sentence is based on an activity in which a defendant was actually involved, § 3B1.2 does not require a reduction in the base offense level even though the defendant’s activity in a larger conspiracy may have been minor or minimal.” United States v. Stanford, 823 F.3d 814, 852 (5th Cir. 2016) (citation omitted).

The record shows Pando was sentenced based only on the activity in which he was involved, specifically the quantity of meth found on him at the arrest and that he admitted having sold and purchased. Although Pando alleged the meth belonged to a co-conspirator, he failed to provide evidence rebutting the presentence report’s contrary conclusion. See United States v. Taylor, 277 F.3d 721, 725–27 (5th Cir. 2001). In addition, Pando does not point to evidence indicating the roles of his co-conspirators or showing that his role was limited to transportation and storage. Therefore, the district court did not clearly err in denying Pando a mitigating role. See United States v. Torres-Hernandez, 843 F.3d 203, 209–10 (5th Cir. 2016).

AFFIRMED.