United States v. Garza

*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this opinion should not be published and is not precedent except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
July 23, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41326
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ROSENDO GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2401-ALL
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Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Jose Rosendo Garza appeals his sentence following his guilty-
plea conviction for possession with intent to distribute more than
50 grams of methamphetamine. He argues that the district court
erred in denying him a minor-role adjustment to his offense level
under U.S.S.G. § 3B1.2(b). Garza asserts that he was a minor
participant because he was a courier and had limited knowledge of
the conspiracy and drugs transported.

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2
As Garza did not preserve this issue in the district court, we
review for plain error. See United States v. Washington, 480 F.3d
309, 313 (5th Cir. 2007). Pursuant to § 3B1.2 (b), a district
court may decrease a defendant’s offense level by two levels if the
defendant was a minor participant. An adjustment for a minor role
applies to a defendant “who is less culpable that most other
participants, but whose role could not be described as minimal.”
§ 3B1.2, comment. (n.5). The district court did not plainly err in
denying Garza a minor-role adjustment. Accordingly, Garza’s
sentence is affirmed.
Although Garza’s sentence is affirmed, there is a clerical
error in the record. The indictment and plea agreement charged
Garza with possession with intent to distribute more than 50 grams
of methamphetamine, whereas the judgment reflected that Garza was
convicted of possession with intent to distribute more than 50
kilograms of methamphetamine. Accordingly, this matter is remanded
to the district court for correction of the clerical error in the
judgment pursuant to FED. R. CRIM. P. 36.
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN
JUDGMENT

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