United States v. Ellis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50557
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JEFFREY ELLIS,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-259-4

Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM:
*

Jeffrey Ellis was sentenced to 120 months in prison after he pleaded
guilty to conspiracy to distribute and to possess with intent to distribute
methamphetamine. On appeal he argues that the district court erred in
denying his request for a mitigating-role adjustment under U.S.S.G. § 3B1.2.
We generally review a district court’s interpretation and application of the
Sentencing Guidelines de novo and its factual findings for clear error. See, e.g.,

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 1, 2020

Lyle W. Cayce
Clerk
Case: 19-50557 Document: 00515367551 Page: 1 Date Filed: 04/01/2020

No. 19-50557
2
United States v. Sanchez-Villareal, 857 F.3d 714, 721 (5th Cir. 2017) (first
citing United States v. Vasquez, 839 F.3d 409, 411-12 (5th Cir. 2016); and then
citing United States v. Gomez–Valle, 828 F.3d 324, 327 (5th Cir. 2016)).
However, objections to the guidelines calculations not raised in the district
court are reviewed only for plain error. See United States v. Wikkerink, 841
F.3d 327, 331 (5th Cir. 2016) (quoting United States v. Chavez–Hernandez, 671
F.3d 494, 497 (5th Cir. 2012)); United States v. John, 597 F.3d 263, 282 (5th
Cir. 2010) (citing United States v. Garza–Lopez, 410 F.3d 268, 272 (5th Cir.
2005)).
Ellis contends that the district court analyzed his request for a § 3B1.2
adjustment improperly and failed to adequately explain its denial of the
adjustment. Because these arguments are raised here for the first time, we
review them only for plain error. See Wikkerink, 841 F.3d at 331. Ellis fails to
meet the plain-error standard. See Puckett v. United States, 556 U.S. 129, 135-
36 (2009). To the extent he presents a preserved challenge to the denial itself,
this claim is also unavailing. Eligibility for a § 3B1.2 adjustment is limited to
defendants who show that they are “substantially less culpable than the
average participant” in criminal activity. United States v. Castro, 843 F.3d
608, 611-13 (5th Cir. 2016). Ellis, who offered no evidence as to the culpability
of other offenders, failed to make that showing. See id. at 613-14.
AFFIRMED.

Case: 19-50557 Document: 00515367551 Page: 2 Date Filed: 04/01/2020