United States v. Ortega-Marufo

United States Court of Appeals
for the Fifth Circuit

No. 20-50164
Summary Calendar

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ion should not be published and is not precedent except under the limited circumstances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.
United States Court of Appeals
Fifth Circuit
FILED
December 1, 2020

Lyle W. Cayce
Clerk
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2
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
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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.
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