United States v. Wakeford

United States Court of Appeals
for the Fifth Circuit

No. 19-11101
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Wesley Wayne Wakeford,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-112-4

Before Clement, Higginson, and Engelhardt, Circuit
Judges.
Per Curiam:*
Wesley Wayne Wakeford pleaded guilty to conspiring to possess with
intent to distribute methamphetamine and was sentenced within the advisory
guidelines range to 71 months in prison. On appeal, he challenges the district
court’s application of a two-level enhancement, its failure to apply a two-level

*
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not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 14, 2020

Lyle W. Cayce
Clerk
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No. 19-11101
2
reduction, and its failure to grant a downward variance. We find no error and
affirm.
Because Wakeford’s offense involved methamphetamine imported
from Mexico, the district court applied an enhancement under U.S.S.G.
§ 2D1.1(b)(5). Wakeford does not dispute the origin of the drug but
maintains that based on our decision in United States v. Rodriguez, 666 F.3d
944 (5th Cir. 2012), the enhancement also required a showing of proximity,
familiarity, and repeated business with the importers. This argument is
foreclosed by United States v. Foulks, 747 F.3d 914, 914-15 (5th Cir. 2014), as
Wakeford acknowledges. Although he argues that Foulks was wrongly
decided, one panel of this court may not overturn the decision of another
panel absent an intervening change in the law. See Jacobs v. Nat’l Drug
Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
Wakeford also contends he should have received a minor-role
adjustment under U.S.S.G. § 3B1.2(b). Even assuming this contention was
preserved in the district court, it fails. Whether a defendant qualifies as a
minor participant under § 3B1.2(b) is a factual question reviewed for clear
error, and a factual finding is not clearly erroneous if it is plausible in light of
the record as a whole. See United States v. Gomez-Valle, 828 F.3d 324, 327
(5th Cir. 2016). A defendant is entitled to a § 3B1.2 adjustment only if he
shows by a preponderance of the evidence that he is substantially less
culpable than the average participant in an offense. United States v. Castro,
843 F.3d 608, 613 (5th Cir. 2016). Wakeford, who presented no evidence
concerning the offense at issue, has not done that. He fails to establish that
the district court clearly erred. See Gomez-Valle, 828 F.3d at 327.
Lastly, we consider Wakeford’s argument that the district court erred
in not granting a downward variance, a claim that “amounts to a challenge to
the substantive reasonableness” of the sentence imposed. United States v.
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No. 19-11101
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Douglas, 957 F.3d 602, 609 (5th Cir. 2020) (internal quotation marks and
citation omitted). We review for substantive reasonableness under an abuse-
of-discretion standard. See United States v. Odom, 694 F.3d 544, 547 (5th Cir.
2012). Because Wakeford’s 71-month sentence falls within the guidelines
range of 57 to 71 months, it is entitled to a presumption of reasonableness.
See United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006). “The
presumption is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Although Wakeford argues that the district court
failed to consider his allegedly minor role, the record shows that the court
listened to his arguments in mitigation but assigned greater weight to his
criminal history. We will not reweigh the district court’s balancing of
relevant factors, see Douglas, 957 F.3d at 609-10, and accordingly conclude
that the court’s sentence was substantively reasonable.
AFFIRMED.
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