USA v. Morales, No. 23-40184 (5th Cir. 2023)
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Case: 23-40184 Document: 00516998012 Page: 1 Date Filed: 12/12/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED December 12, 2023 Lyle W. Cayce Clerk No. 23-40184 Summary Calendar ____________ United States of America, Plaintiff–Appellee, versus Jose De Jesus Morales, Defendant–Appellant. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 5:21-CR-1172-4 ______________________________ Before Wiener, Stewart, and Douglas, Circuit Judges. Per Curiam: * Defendant–Appellant Jose de Jesus Morales pleaded guilty to one count of conspiracy to possess with intent to distribute methamphetamine and heroin and two counts of possession with intent to distribute methamphetamine. The district court sentenced Morales to concurrent terms of 135 months of imprisonment on each count, followed by five years _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-40184 Document: 00516998012 Page: 2 Date Filed: 12/12/2023 No. 23-40184 of supervised release. Morales challenges the district court’s denial of a minor-role adjustment under U.S.S.G. § 3B1.2(b). Our review of this issue is for clear error. See United States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016) (internal citation omitted). Morales contends that he should have received a two-level downward adjustment for his minor role in the offense because he was merely a courier who was not involved in planning or organizing and had no decision-making authority. However, unlike the other average participants he identifies, Morales individually arranged at least one drop off of drugs. In light of the record as a whole, Morales has not met his burden of showing that he was substantially less culpable than the average participant or that his acts were merely peripheral to the criminal activity. See § 3B1.2 cmt. n.3; United States v. Anchundia-Espinoza, 897 F.3d 629, 634–35 (5th Cir. 2018) (quoting United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001)) (“A minor participant adjustment is not appropriate simply because a defendant does less than other participants; in order to qualify as a minor participant, a defendant must have been peripheral to the advancement of the illicit activity.”); Castro, 843 F.3d at 612 (“Castro could be a courier without being substantially less culpable than the average participant.” (internal quotation marks and citation omitted)). AFFIRMED. 2
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