UNITED STATES OF AMERICA v. JOSE ABRAHAM BENAVIDES CIRA (2017)

Jose Abraham Benavides-Cira pleaded guilty to conspiracy to export a defense article without obtaining a license or written authorization and possession of a firearm with a removed, obliterated, or altered serial number; he was sentenced within the guidelines range to a total of 135 months of imprisonment. He now appeals his sentence, arguing that the district court clearly erred by refusing to grant him a mitigating role adjustment under U.S.S.G. § 3B1.2.

Benavides-Cira's notion that he was a minor or minimal participant because he was he was “merely a negotiator,” “middleman,” and “facilitator” in the criminal activity is unavailing. Benavides-Cira was actively involved in finding suppliers for the illicit firearms and in the actual or attempted negotiations, delivery, and sale of eight firearms to undercover agents over a four-month period. As part of those negotiations, he communicated directly with undercover agents through five in-person meetings, telephone conversations, and text messages, and he was present for the sale and transfer of three firearms and the attempted sale of five firearms that preceded his arrest in this case.

Benavides-Cira had the burden of proving by a preponderance of the evidence that he was “substantially less culpable than the average participant in the criminal activity.” § 3B1.2, comment. (n.3(A)); see United States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016). The district court's implicit conclusion that he failed to meet this burden is plausible in light of the record as a whole. See United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). Accordingly, the district court did not clearly err by denying Benavides-Cira's request for a mitigating role adjustment. See id.

AFFIRMED.

PER CURIAM:*