UNITED STATES v. BAZAN (2019)

Defendant-Appellant Jose Armando Bazan appeals the 24-month sentence imposed in connection with his conviction for conspiracy to possess with the intent to distribute 500 grams or more of cocaine. For the first time on appeal, Bazan contends that the district court plainly erred in failing to award an offense level reduction under U.S.S.G. § 3B1.2 for having a mitigating role in the offense.

Whether Bazan was a minor or minimal participant under § 3B1.2 is a factual determination. See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). Because this issue was a question of fact capable of resolution at sentencing, the issue “can never constitute plain error.” United States v. Fierro, 38 F.3d 761, 774 (5th Cir. 1994).

Accordingly, the judgment of the district court is AFFIRMED.

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FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.