Conference Calendar UNITED STATES OF AMERICA v. Adrian Omar Preciado-Giner

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-50149
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ADRIAN OMAR PRECIADO-GINER
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-2233-ALL
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Adrian Omar Preciado-Giner (Preciado) appeals his sentence of 46 months
of imprisonment for conspiring to possess, and possessing with intent to
distribute, more than 100 kilograms of marijuana. He argues that the district
court erred by declining his request for a minor role adjustment pursuant to
U.S.S.G. § 3B1.2(b) because he acted only as a courier for the drugs at issue.
Whether a defendant is a minor participant in a drug offense is a factual
United States Court of Appeals
Fifth Circuit
F I L E D
December 10, 2008
Charles R. Fulbruge III
Clerk

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No. 08-50149
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determination reviewed for clear error. United States v. Villanueva, 408 F.3d
193, 203 (5th Cir. 2005). “A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.” Id.
An adjustment for a minor role applies to a defendant “who is less culpable
than most other participants, but whose role could not be described as minimal.”
§ 3B1.2, comment. (n.5). To be eligible for a minor role adjustment, a defendant
“must have been peripheral to the advancement of the illicit activity.” United
States v. Miranda, 248 F.3d 434, 447 (5th Cir. 2001). The burden is on the
defendant to establish his entitlement to the reduction by a preponderance of the
evidence. Burton v. United States, 237 F.3d 490, 503 (5th Cir. 2000).
A defendant’s role in the offense “turns upon culpability, not courier
status.” United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).
Consequently, drug couriers are not necessarily eligible for a reduction of their
offense level under § 3B1.2. United States v. Edwards, 65 F.3d 430, 434 (5th Cir.
1995). To the contrary, couriers are often “an indispensable part of drug dealing
networks. Without somebody to take the drugs across the border, the drugs will
never reach their illicit market.” Buenrostro, 868 F.2d at 138.
In denying Preciado a minor role adjustment, the district court observed
that Preciado was arrested while transporting from Mexico to Memphis,
Tennessee, an “exorbitant” amount of marijuana (474.9 kilograms) with a
market value of $834,000. The district court did not clearly err in denying
Preciado a minor role adjustment. See United States v. Gallegos, 868 F.2d 711,
712-13 (5th Cir. 1989).
AFFIRMED.

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