United States v. Reyes-Puletapuaimapuolesega

United States Court of Appeals
for the Fifth Circuit

No. 20-50173
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Candida Reyes-Puletapuaimapuolesega, also known as
Candy,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CR-112-2

Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Candida Reyes-Puletapuaimapuolesega (Reyes) appeals the 235-
month sentence imposed after her guilty plea conviction for possession with
intent to distribute a controlled substance, namely at least 50 grams of

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
November 11, 2020

Lyle W. Cayce
Clerk
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No. 20-50173
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methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(viii). Reyes contends that the district court erred in: (1)
calculating the drug quantity used to establish her base offense level, (2)
applying a two-level enhancement for possession of a dangerous weapon, and
(3) denying her a four- or two-level reduction for her minimal or minor role
in the drug trafficking enterprise. We address each issue in turn.
The district court’s determination of the quantity of drugs attributable
to a defendant is a factual finding that is reviewed for clear error. See United
States v. Barfield, 941 F.3d 757, 761 (5th Cir. 2019), cert. denied, 140 S. Ct.
1282 (2020). The facts presented in the presentence report (PSR),
undisputed by Reyes, support the district court’s findings. Therefore, it was
not clear error for the district court to conclude that Reyes participated in
Andrew Mohan Ballantine’s drug activities during the time she resided in his
home, that she was aware of the scope of his activities during that time, and
that the amount of drugs he sold during the time was reasonably foreseeable
to her as part of their jointly undertaken criminal activity. See United States
v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005); U.S.S.G. § 1B1.3, cmt.
n. 3(A); see also United States v. Castillo, 77 F.3d 1480, 1496 (5th Cir. 1996).
Despite Reyes’s assertion that she did not agree to the entire scope of
Ballantine’s drug activities, there need not be a formality to the agreement,
which may even be tacit. United States v. Martinez, 921 F.3d 452, 467 (5th
Cir. 2019). The agreement and Reyes’s voluntary participation may be
inferred from “concert of action,” a collection of circumstances, and
“surrounding circumstances.” Id. at 467-68 (cleaned up).
We review a district court’s application of a U.S.S.G. § 2D1.1(b)(1)
enhancement for possession of a dangerous weapon for clear error as a factual
finding. United States v. King, 773 F.3d 48, 52 (5th Cir. 2014). Here, Reyes
failed to show that it was “clearly improbable” that the weapons collected
during the investigation were connected to the methamphetamine
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distribution. United States v. Rodriguez, 62 F.3d 723, 724-25 (5th Cir. 1995);
U.S.S.G. § 2D1.1, cmt. n.11(A). Accordingly, the district court did not
commit clear error in applying the § 2D1.1(b)(1) enhancement. See King, 773
F.3d at 52; Rodriguez, 62 F.3d at 725.
Whether a defendant is a minor or minimal participant is a factual
determination reviewed for clear error. See United States v. Alaniz, 726 F.3d
586, 626 (5th Cir. 2013); United States v. Villanueva, 408 F.3d 193, 203 & n.9
(5th Cir. 2005). In this case, the district court was correct in its finding that
a minimal role reduction is not appropriate. The evidence does not establish
that Reyes was among the least culpable of participants in a drug enterprise,
particularly given that she admitted to knowing that Ballantine sold
methamphetamine, to selling methamphetamine to his customers, to
providing new customers to Ballantine, and to selling methamphetamine to
her own customers on occasion. U.S.S.G. § 3B1.2, cmt. n.4. Nor is Reyes
entitled to a minor role reduction. Although she may have participated less
than Ballantine, who organized the drug trafficking enterprise, Reyes has not
demonstrated that she was “substantially less culpable” than an average
participant would have been or that her participation was “peripheral” to the
success of the criminal venture. Villanueva, 408 F.3d at 204.
Accordingly, the judgment of the district court is AFFIRMED.

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