Case: 20-40077     Document: 00515584516         Page: 1     Date Filed: 09/30/2020




              United States Court of Appeals
                   for the Fifth Circuit                          United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                 September 30, 2020
                                  No. 20-40077
                                                                    Lyle W. Cayce
                                Summary Calendar                         Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Lilia Abril Olmedo-Perez,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:19-CR-1088-1


   Before Jones, Barksdale, and Stewart, Circuit Judges.
   Per Curiam:*
          Lilia Abril Olmedo-Perez pleaded guilty to, inter alia, importing 500
   grams or more of cocaine, in violation of 21 U.S.C. §§ 952(a); 960(a)(1) and
   (b)(2). The district court sentenced her below the advisory Sentencing
   Guidelines sentencing range to 80 months’ imprisonment. As she did in


          *
            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   opinion should not be published and is not precedent except under the limited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.
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                                     No. 20-40077


   district court, Olmedo challenges the court’s not granting a mitigating-role
   reduction under Guideline § 3B1.2.
          Although, post-Booker, the Guidelines are advisory only, the district
   court must avoid significant procedural error, such as improperly calculating
   the Guidelines sentencing range. Gall v. United States, 

, 46, 51
   (2007). If no such procedural error exists, a properly preserved objection to
   an ultimate sentence is reviewed for substantive reasonableness under an
   abuse-of-discretion standard.

United States v. Delgado-Martinez,
   

, 751–53 (5th Cir. 2009). In that respect, for issues preserved in
   district court, its application of the Guidelines is reviewed de novo; its factual
   findings, only for clear error. E.g. United States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008). In this instance, only a claimed procedural error is
   at issue.
          Our court’s review of factual findings includes the district court’s
   deciding whether defendant was a minor or minimal participant in order to
   apply a mitigating-role reduction under Guideline § 3B1.2. United States v.
   Gomez-Valle, 

, 327 (5th Cir. 2016). “A factual finding is not
   clearly erroneous if it is plausible in light of the record read as a whole.”

and citation omitted). Defendant’s burden of
   showing her entitlement to a mitigating-role reduction must include two
   things: “(1) the culpability of the average participant in the criminal activity;
   and (2) that [defendant] was substantially less culpable than that
   participant”. United States v. Castro, 

, 613 (5th Cir. 2016)
   (footnote omitted).
          Olmedo contends she was not involved as a leader, organizer, or
   supervisor; but, that contention alone is not enough. Again, she has the
   burden of proof.      See

      Her objections to the presentence
   investigation report (PSR) failed to include information about the average




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                                     No. 20-40077


   culpability of a participant. Similarly, she did not include facts to suggest she
   was less culpable than the average participant. Nor did she otherwise
   demonstrate that she participated so much less than other participants that
   she was peripheral to the advancement of criminal activity.
          Instead, the PSR and record show Olmedo attempted to enter the
   United States while smuggling nearly four kilograms of cocaine and two
   kilograms of another drug. On an unknown number of prior occasions, she
   smuggled drugs and illicit proceeds between Mexico and the United States
   and was paid for those operations. In the light of these facts, the district court
   found Olmedo was at least an average participant. Given the court’s findings
   and Olmedo’s failure to provide necessary evidence to the contrary, the
   denial of the reduction was plausible in the light of the whole record. See
   

.
          AFFIRMED.




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