United States v. Lares-Niebla

* Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 21 U.S.C. §§ 952 and 960.
2 21 U.S.C. § 841.
United States Court of Appeals
Fifth Circuit
F I L E D
March 6, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50894
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTICO LARES-NIEBLA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:02-CR-1733-ALL
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Albertico Lares-Niebla (“Lares”) pleaded not guilty to
importation of marijuana1 and possession with intent to
distribute marijuana,2 unsuccessfully posited a no-knowledge
defense, and appeals his 45-month sentence following a jury
trial. He argues that the district court misinterpreted the
Sentencing Guidelines when it erroneously denied his request for

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3 The district court overruled the minor-role adjustment objection,
explaining that it would be “inconsistent with his defense at trial.” Lares
argues that this rationale does not amount to a failure of proof.
4 See United States v. Buenrostro, 868 F.2d 135 (5th Cir. 1989).
5 See U.S.S.G § 3B1.2, comment (n.3(C)). Lares points to evidence
demonstrating that he did not own the truck, as it was borrowed and registered
to a third party, and argues that no evidence establishes that he had a
proprietary interest in the marijuana seized from its tires.
6 See United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
7 U.S.S.G. § 3B1.2, comment. (n.5).
8 United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001).
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a minor-role adjustment under U.S.S.G. § 3B1.2.3 Although
admitting that he is not necessarily entitled to an adjustment,4
Lares contends that he was a mere courier and that the district
court failed to consider the “totality of the circumstances” when
applying the Guidelines;5 he seeks remand for a proper inquiry.
We review the district court’s application of the Sentencing
Guidelines de novo and review factual findings for clear error.6
Pursuant to U.S.S.G. § 3B1.2, 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 than most other participants, but
whose role could not be described as minimal.”7 The defendant
bears the burden of proving that he was a minor participant in
the offense.8
Though lack of knowledge of the criminal endeavor does not

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9 See United States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996) (citing
U.S.S.G. § 3B1.2, comment. (nn.1 & 2)).
10 See United States v. Brown, 54 F.3d 234, 242 (5th Cir. 1995) (“The PSR
generally bears sufficient indicia of reliability to be considered as evidence
by the district court in resolving disputed facts. A district court may thus
adopt facts contained in the PSR without further inquiry if the facts have an
adequate evidentiary basis and the defendant does not present rebuttal evidence”
(internal citations omitted).).
11 Garcia, 242 F.3d at 598; see also United States v. Atanda, 60 F.3d 196,
199 (5th Cir. 1995).
12 Id.
13 See United States v. Hare, 150 F.3d 419, 428 (5th Cir. 1998), overruled
on other grounds by United States v. Doggett, 230 F.3d 160 (5th Cir. 2000)
(stating that 50 pounds of marijuana is not a small amount for purposes of the
minor-role adjustment).
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preclude application of a minor-role adjustment,9 we conclude
that Lares has not shown the district court misapprehended the
Sentencing Guidelines or that he should have received a minor-
role adjustment. The district court expressly adopted the
presentence report, which determined that no mitigating evidence
existed.10 Lares has not demonstrated that reliance on the fact
determinations found therein results in clear error.
Moreover, for purposes of § 3B1.2, a defendant’s involvement
in an offense is not evaluated with reference to the entire
criminal enterprise in which he participated.11 Rather, the
proper scope of a § 3B1.2 inquiry asks whether a defendant’s
involvement was minor in relation to the conduct for which he was
held accountable.12 Lares was convicted and sentenced based on
his possession of 46.8 kilograms of marijuana13 that were found

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14 See Buenrostro, 868 F.3d at 138 (discussing the implications of a
courier involved in a criminal enterprise).
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in the truck he drove across the border14 and is, therefore, not
entitled to a minor-role adjustment.
AFFIRMED.

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