United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                April 4, 2006
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 04-40876



UNITED STATES OF AMERICA

                Plaintiff - Appellee

     v.

JOSE GUADALUPE MOLINA

                Defendant - Appellant



          Appeal from the United States District Court
            for the Southern District of Texas, Laredo
                        No. 5:03-CR-1784-1


Before KING, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Jose Guadalupe Molina appeals his

judgment of conviction and sentence, arguing that: (1) the

district court erred by denying his request for a mitigating role

adjustment under U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (2003)

[hereinafter U.S.S.G.]; (2) the district court erred by

sentencing him under the mandatory Guidelines, in violation of


     *
        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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.

                                 -1-
United States v. Booker, 

(2005); and (3) the

statutes under which he was convicted, 21 U.S.C. §§ 841 and 846,

are unconstitutional.   For the following reasons, we AFFIRM the

district court’s judgment of conviction and VACATE and REMAND for

resentencing.

                I. FACTUAL AND PROCEDURAL BACKGROUND

     On November 1, 2003, four border patrol agents responded to

a sensor activated on the Dolores Ranch in Laredo, Texas and set

up surveillance in the area.1   Agents Marco Lara and Duke

Canchola were stationed on the ground, and the other two agents

remained in their marked vehicle.     Agent Lara notified the other

agents that he saw a man walking across the ranch, later

identified as the defendant-appellant Jose Guadalupe Molina.

Agent Lara then observed a second man approach Molina, and after

the two men spoke with each other and scanned the area, Molina

began walking toward Agent Canchola’s undetected position on the

ground.   Agents Lara and Canchola also observed approximately ten

individuals carrying duffel bags on their backs, who appeared to

be following Molina.2

     Once Molina approached Agent Canchola’s position, he was

arrested.   Around the time Agent Canchola was arresting Molina,


     1
        The sensor alerts agents to possible drug trafficking or
illegal aliens crossing the border.
     2
        Agent Canchola testified that Molina appeared to be
scouting the area for law enforcement.

                                -2-
the individuals with the duffel bags dropped their bundles and

fled.   Agent Lara arrested a man in the group who was not

carrying any narcotics, later identified as Gerardo Mendez-

Sanchez.   Although the agents did not arrest any of the

individuals carrying the narcotics, they recovered ten duffel

bags, which contained approximately 239.72 kilograms of

marijuana.

     Molina and Mendez-Sanchez were advised of their Miranda

rights, and both agreed to make statements to the agents.    Molina

told the agents that his job was to go north of the narcotics

load-up area and watch for law enforcement.   In addition to

receiving his statement, the agents seized the cell phone that

Molina had been carrying in a plastic bag.    The cell phone screen

displayed the word “mula,” slang for mule or courier in Spanish.

In his statement to the agents, Mendez-Sanchez explained that his

job was to erase the footprints left in the grass by those

carrying the narcotics.   He also told the agents that Molina was

a scout for the drug operation.

     On November 18, 2003, Molina and Mendez-Sanchez were charged

in a two-count indictment with: (1) conspiracy to possess with

intent to distribute more than 100 kilograms of marijuana, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846; and (2)

possession with intent to distribute more than 100 kilograms of

marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§ 841(a)(1), (b)(1)(B).   Pursuant to a written plea agreement,

                                  -3-
Mendez-Sanchez pleaded guilty to the possession count.    Molina

pleaded not guilty, and his case proceeded before a jury.     At

Molina’s trial, Mendez-Sanchez testified as a government witness

that the group was following Molina and that Molina was acting as

a guide.    On January 14, 2004, a jury found Molina guilty of both

counts in the indictment.

     In the Presentence Report (“PSR”), the probation officer

recommended a base offense level of 26, using U.S.S.G.

§ 2D1.1(c)(7), for an offense involving at least 100 kilograms of

marijuana.    After concluding that Molina was a manager or

supervisor in the drug conspiracy pursuant to U.S.S.G.

§ 3B1.1(b), the probation officer recommended adding three levels

to arrive at a total offense level of 29.    With Molina’s criminal

history category of I, the recommendation resulted in a guideline

imprisonment range of 87 to 108 months.

     Molina objected to the PSR, disputing the three-level

aggravating role adjustment under U.S.S.G. § 3B1.1(b) and

requesting a minimal or minor role adjustment pursuant to

U.S.S.G. § 3B1.2(a)-(b).    In an addendum to the PSR, the

probation officer maintained that Molina acted as a supervisor or

manager of the drug conspiracy, thus warranting the three-level

increase.    The probation officer also recommended denying the

role adjustment under either § 3B1.2(a) or (b) because she

concluded that Molina’s role in the drug conspiracy was “[i]n no

way . . . minimal or minor.”

                                 -4-
     At sentencing, Molina re-urged his objections, this time

citing Blakely v. Washington, 

(2004), in support of

his contention that the aggravating role adjustment under

U.S.S.G. § 3B1.1(b) was not warranted because there was no jury

finding that he had a managerial or supervisory role in the drug

conspiracy.   He also argued that he should receive a mitigating

role adjustment pursuant to U.S.S.G. § 3B1.2(a)-(b), given that

his role in the conspiracy was minimal or minor.

     The district court found that the facts did not support a

three-level enhancement for Molina’s role in the offense and

therefore did not apply the aggravating role adjustment.    The

district court denied Molina’s request for a downward adjustment,

finding that Molina was “clearly not just one of the mules.”

After re-calculating Molina’s total offense level as 26, the

district court determined that the guideline imprisonment range

was sixty-three to seventy-eight months.   In sentencing Molina,

the district court stated:

     I’m going to sentence you at that lower level, 26. But
     I am going to sentence you around the middle, slightly
     above the middle, because of the weight of the marijuana,
     first of all. And because, as I say, you’re clearly not
     just one of the mules. So I’m going to sentence you to
     72 months. When you get out, you will be on supervised
     release for five years.

Molina filed this timely notice of appeal.

                          II. DISCUSSION

A.   Mitigating Role Adjustment Under U.S.S.G. § 3B1.2



                                -5-
     Molina argues that he should have received a downward

adjustment under U.S.S.G. § 3B1.2 because there is no evidence

showing that he had a role in coordinating the drug smuggling or

that he knew anything about who supplied the marijuana or where

it was to be delivered.   According to Molina, his limited role of

scouting the area for law enforcement and serving as a guide

supports his contention that the district court erred in denying

him a mitigating role adjustment.

     Under U.S.S.G. § 3B1.2, a district court may reduce a

defendant’s offense level by four levels if the defendant was a

“minimal participant” in the criminal activity or by two levels

if the defendant was a “minor participant.”    U.S.S.G. § 3B1.2(a)-

(b); United States v. Virgen-Moreno, 

, 296 (5th Cir.

2001).   “Such an adjustment is ‘generally appropriate only if a

defendant is substantially less culpable than the average

participant.’”   

(quoting United

States v. Flucas, 

, 181 (5th Cir. 1996)); see also

U.S.S.G. § 3B1.2 cmt. n.3(A).

     As the commentary points out, the decision of whether to

apply § 3B1.2(a) or (b) “involves a determination that is heavily

dependent upon the facts of the particular case.”    U.S.S.G.

§ 3B1.2 cmt. n.3(C) (noting that the court “is not required to

find, based solely on the defendant’s bare assertion, that such a

role adjustment is warranted”).    Given this fact-intensive

inquiry, we will not reverse the district court’s finding that

                                  -6-
Molina’s conduct did not warrant the downward adjustment unless

that finding is clearly erroneous.    See 

.   “A factual finding is not clearly erroneous if it is

plausible in light of the record read as a whole.”   United States

v. Villanueva, 

, 203 (5th Cir.), cert. denied, 126 S.

Ct. 268 (2005); see also Anderson v. Bessemer City, 

,

573-74 (1985) (“If the district court’s account of the evidence

is plausible in light of the record viewed in its entirety, the

court of appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have weighed

the evidence differently.”).

     The district court’s finding that Molina was “clearly not

just one of the mules” is supported by the record.   Molina

admitted to the border patrol agents that he was scouting the

area for law enforcement, which means that his criminal activity

was not confined to “mule” or courier status.   Additionally,

Mendez-Sanchez testified that the individuals carrying the

bundles of marijuana were following Molina and that Molina was

acting as a guide.   See United States v. Pofahl, 

,

1485 (5th Cir. 1993) (holding that there was no clear error in

the district court’s finding that the defendant’s role was not

minimal or minor where the defendant’s “role was not confined to

that of a mule”); see also United States v. Bethley, 

, 401 (5th Cir. 1992) (stating that “a ‘mule’ or transporter

of drugs may not be entitled to minor or minimal status”).    The

                                -7-
district court also considered the weight of the marijuana

involved in this case in denying Molina’s request.    Our case law

supports such a consideration in denying an adjustment under

U.S.S.G. § 3B1.2.    See United States v. Leal-Mendoza, 

, 477 (5th Cir. 2002) (concluding that the district court did

not clearly err in refusing an adjustment where the defendants

were paid a substantial sum of money and moved a large quantity

of drugs); see also United States v. Rodriguez De Varon, 

, 943 (11th Cir. 1999) (en banc) (stating that drug quantity

may be the best indication of a drug courier’s participation in

the criminal activity).    Based on our review of the record in its

entirety, we hold that the district court did not clearly err in

refusing Molina an adjustment pursuant to U.S.S.G. § 3B1.2.

B.   Sentencing Under Mandatory Guidelines

     Although Molina contends that the district court committed

Booker error by sentencing him under the mandatory Guidelines, he

concedes that he failed to raise this issue before the district

court and therefore plain-error review applies.    The government

correctly notes that this case involves Fanfan error, and not

Booker error, because Molina is complaining only about the

district court’s mandatory application of the Guidelines.3    See

United States v. Walters, 

, 463 (5th Cir. 2005)

     3
        This case   does not involve Booker error because Molina
stipulated to the   amount of drugs involved in his offense, and
drug quantity was   the only fact that the district court used to
increase Molina’s   sentence.

                                 -8-
(discussing the difference between Booker and Fanfan error).

With regard to Molina’s suggested standard of review, the

government readily accepts plain error as the appropriate

blueprint for this case.

     As an initial matter, we observe that we are not bound by

Molina’s concessions--or the government’s acceptance of those

concessions--because it is this court, and not the parties, that

determines the proper standard of review.   See United States v.

Vontsteen, 

, 1091 (5th Cir. 1992) (en banc) (“[N]o

party has the power to control our standard of review. . . . If

neither party suggests the appropriate standard, the reviewing

court must determine the proper standard on its own”) (internal

citation omitted); see also St. Tammany Parish Sch. Bd. v.

Louisiana, 

, 782 (5th Cir. 1998) (“Of course, we, not

the parties, determine the proper standard of review.”).

     Our review of the record reveals that Molina made a Blakely

objection in the district court, thereby preserving Fanfan error

for harmless-error review.   See United States v. Rodriguez-Mesa,

--- F.3d ----, 

, at *5 (5th Cir. Mar. 15, 2006)

(stating that the defendant preserves Fanfan error by raising a

Blakely objection in the district court).   Under harmless-error

review, we will normally vacate and remand for resentencing

unless the government can prove that the error was harmless

beyond a reasonable doubt.   United States v. Mares, 

,

520 n.9 (5th Cir.) (stating that if the issue presented in Fanfan

                               -9-
is preserved, this court will vacate and remand unless the error

is harmless under FED. R. CRIM. P. 52(a)), cert. denied, 

(2005).   “[T]he government must shoulder the heavy burden of

demonstrating that the district court would not have imposed a

different sentence under the advisory regime--in essence, the

[g]overnment must prove a negative.”   United States v. Woods, ---

F.3d ----, 

, at *3 (5th Cir. Feb. 13, 2006); see

also United States v. Akpan, 

, 377 (5th Cir. 2005)

(stating that the government must “prove beyond a reasonable

doubt that the district court would not have sentenced [the

defendant] differently had it acted under an advisory Guidelines

regime”).

     We have reviewed the record in its entirety, and there is

nothing in the record indicating that the district court would

not have sentenced Molina differently under advisory Guidelines.

In fact, the district court judge did not make any statement at

sentencing regarding what he would have done under an advisory

sentencing regime.   Under the harmless-error standard, “[t]he

judge’s silence as to whether or not he would have imposed a

different sentence under an advisory regime does not satisfy

th[e] [government’s] burden.”   United States v. Pineiro, 

, 286 (5th Cir. 2005).   Accordingly, we must vacate Molina’s

sentence and remand for further proceedings.

C.   Constitutionality of 21 U.S.C. §§ 841(a), 841(b), 846



                                -10-
     Finally, Molina argues, for the first time on appeal, that

the statutes under which he was convicted, 21 U.S.C. §§ 841(a),

841(b), and 846, are facially unconstitutional under Apprendi v.

New Jersey, 

(2000).   As he correctly concedes, this

claim is foreclosed by circuit precedent.   See United States v.

Slaughter, 

, 582 (5th Cir. 2000) (“We see nothing in

the Supreme Court decision in Apprendi which would permit us to

conclude that 21 U.S.C. §§ 841(a) and (b), 846, and 860(a) are

unconstitutional on their face.”).

                         III. CONCLUSION

     For the foregoing reasons, we AFFIRM Molina’s judgment of

conviction as imposed by the district court, and VACATE and

REMAND for resentencing in accordance with this opinion.




                              -11-