United States v. Vivanco-Atriano

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 13, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50173
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FILIBERTO VIVANCO-ATRIANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:05-CR-251
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Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Filiberto Vivanco Atriano (Vivanco) appeals his sentence
following his convictions for possession of marijuana with intent
to distribute and importation of marijuana. He argues that the
district court misapplied the Sentencing Guidelines when it
erroneously denied him a minor-participant role adjustment to his
offense level under U.S.S.G. § 3B1.2. Vivanco contends that he
was a simple courier. He argues that the district court failed
to consider the totality of the circumstances when applying the
Guidelines and instead erroneously stated that it could apply the

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No. 06-50173
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minor-participant role adjustment under § 3B1.2 only in
“exceptional” circumstances.
We conclude that Vivanco has not shown that the district
court clearly erred when it denied him a minor-participant role
adjustment. See United States v. Atanda, 60 F.3d 196, 198-99
(5th Cir. 1995).
AFFIRMED.

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