United States v. Zuniga-Garcia

Case: 21-40710 Document: 00516392795 Page: 1 Date Filed: 07/13/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

July 13, 2022

No. 21-40710

Summary Calendar Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Carlos Alejandro Zuniga-Garcia,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:20-CR-75-2

Before Smith, Dennis, and Southwick, Circuit Judges.

Per Curiam:*

Carlos Alejandro Zuniga-Garcia pleaded guilty to conspiracy to possess with intent to distribute 100 grams or more of a mixture or substance containing Fentanyl. The district court sentenced him to 135 months of imprisonment. On appeal, Zuniga-Garcia contends that the district court

Case: 21-40710 Document: 00516392795 Page: 2 Date Filed: 07/13/2022

No. 21-40710 erred in applying a four-level upward adjustment under U.S.S.G. § 3B1.1(a) for his role as an organizer or leader in the criminal scheme and in declining to apply a two-level minor participant downward adjustment under U.S.S.G. § 3B1.2(b).

We review the district court’s application of these guidelines provisions for clear error. See United States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016); United States v. Cabrera, 288 F.3d 163, 173 (5th Cir. 2002). Factual findings are not clearly erroneous if they are plausible in light of the record as a whole. United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013).

Section 3B1.1(a) provides for a four-level increase “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” Section 3B1.2(b) authorizes a two- level downward adjustment for a defendant who was a “minor participant.” A minor participant is one who is “less culpable than most other participants in the criminal activity, but whose role could not be described as minimal.” § 3B1.2, comment. (n.5).

The unrebutted evidence supports inferences that Zuniga-Garcia played a significant role in planning and organizing the attempted drug transaction, recruiting accomplices, and directing at least one other co- conspirator through a prison phone line that he paid another inmate to use. The district court’s findings that he was an organizer or leader of the criminal conspiracy and not a minor participant were plausible in light of the record as a whole. See Castro, 843 F.3d at 612; Zuniga, 720 F.3d at 590; Cabrera, 288 F.3d at 173.

AFFIRMED.