Case: 20-50164 Document: 00515656965 Page: 1 Date Filed: 12/01/2020

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 1, 2020 No. 20-50164 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Alexis Ortega-Marufo, also known as Alexis Ortega-Marrufo, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas No. 4:19-CR-723-3

Before King, Smith, and Wilson, Circuit Judges.

Per Curiam:* Alexis Ortega-Marufo appeals his sentence for importation of and pos- session with intent to distribute marihuana. He asserts that he should have received the minor-role adjustment under U.S.S.G. § 3B1.2 because he was

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin- ion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 20-50164 Document: 00515656965 Page: 2 Date Filed: 12/01/2020

No. 20-50164

substantially less culpable than the average participant in the criminal activ- ity. Citing Application Note 3(A) to § 3B1.2, he observes that a drug courier who is accountable only for the quantity he personally transported is eligible for the adjustment. He contends that the district court’s rationale for deny- ing the adjustment—his criminal history—was not implicated by the factors in the commentary to § 3B1.2. According to Ortega-Marufo, those factors instead supported the adjustment because he was similarly situated to his co- defendants as a mere backpacker who did not guide or lead the group, plan the trip, drive the participants, exercise decisionmaking authority, or finan- cially profit from the drug-trafficking activity.

We review the district court’s application of the guidelines de novo and its factual finding that a defendant was a not minor participant for clear error.

United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016). A finding is not clearly erroneous if it is plausible in light of the record as a whole. Id. “We may affirm on any ground supported by the record.” United States v. Luyten, 966 F.3d 329, 332 (5th Cir. 2020).

Contrary to the government’s assertion, “[t]he fact that a defendant performs an essential or indispensable role in the criminal activity is not de- terminative.” § 3B1.2, comment. (n.3(C)); see Gomez-Valle, 828 F.3d at 329.

Even a defendant who plays an essential role may receive the minor-role adjustment if he “is substantially less culpable than the average participant in the criminal activity.” U.S. Sent’g Guidelines Manual § 3B1.2 cmt. n.3(c) (U.S. Sent’g Comm’n 2005).

The record plausibly supports the district court’s finding that Ortega- Marufo was an average participant, rather than one who was substantially less culpable than the average participant. His role as a courier is not determina- tive. See United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). Of the five people who illegally crossed the border from Mexico with a total of

Case: 20-50164 Document: 00515656965 Page: 3 Date Filed: 12/01/2020

No. 20-50164

86.12 kilograms of marihuana in their backpacks, Ortega-Marufo alone knew that the marihuana was being transported to Odessa, Texas. Additionally, he was the only one with a criminal record. Tellingly, it involved a recent con- viction for the same conduct of illegally crossing the border near Marfa, Texas, with a large quantity of marihuana. Those facts together indicated that Ortega-Marufo had a greater understanding of the scope and structure of the criminal activity than did the other participants, a relevant factor in determining whether he should receive the adjustment. See § 3B1.2, com- ment. (n.3(C)). The district court was not required to make an express find- ing on it. See United States v. Torres-Hernandez, 843 F.3d 203, 209−10 (5th Cir. 2016).

Because the finding that Ortega-Marufo was an average participant in the criminal activity is plausible in light of the record as a whole, the court did not err by denying the minor-role adjustment. See § 3B1.2, comment. (n.3(A), (C)); Gomez-Valle, 828 F.3d at 327; Luyten, 966 F.3d at 332. The judgment is AFFIRMED.