Case: 20-50173     Document: 00515634342         Page: 1     Date Filed: 11/11/2020




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

                                                                               FILED
                                                                       November 11, 2020
                                  No. 20-50173                            Lyle W. Cayce
                                Summary Calendar                               Clerk



   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Candida Reyes-Puletapuaimapuolesega, also known as
   Candy,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 6:19-CR-112-2


   Before King, Smith, and Wilson, Circuit Judges.
   Per Curiam:*
          Candida Reyes-Puletapuaimapuolesega (Reyes) appeals the 235-
   month sentence imposed after her guilty plea conviction for possession with
   intent to distribute a controlled substance, namely at least 50 grams of



          *
            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   opinion should not be published and is not precedent except under the limited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.
Case: 20-50173      Document: 00515634342           Page: 2   Date Filed: 11/11/2020




                                     No. 20-50173


   methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
   841(b)(1)(B)(viii).   Reyes contends that the district court erred in: (1)
   calculating the drug quantity used to establish her base offense level, (2)
   applying a two-level enhancement for possession of a dangerous weapon, and
   (3) denying her a four- or two-level reduction for her minimal or minor role
   in the drug trafficking enterprise. We address each issue in turn.
          The district court’s determination of the quantity of drugs attributable
   to a defendant is a factual finding that is reviewed for clear error. See United
   States v. Barfield, 941 F.3d 757, 761 (5th Cir. 2019), cert. denied, 140 S. Ct.
   1282 (2020).     The facts presented in the presentence report (PSR),
   undisputed by Reyes, support the district court’s findings. Therefore, it was
   not clear error for the district court to conclude that Reyes participated in
   Andrew Mohan Ballantine’s drug activities during the time she resided in his
   home, that she was aware of the scope of his activities during that time, and
   that the amount of drugs he sold during the time was reasonably foreseeable
   to her as part of their jointly undertaken criminal activity. See United States
   v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005); U.S.S.G. § 1B1.3, cmt.
   n.3(A); see also United States v. Castillo, 77 F.3d 1480, 1496 (5th Cir. 1996).
   Despite Reyes’s assertion that she did not agree to the entire scope of
   Ballantine’s drug activities, there need not be a formality to the agreement,
   which may even be tacit. United States v. Martinez, 921 F.3d 452, 467 (5th
   Cir. 2019). The agreement and Reyes’s voluntary participation may be
   inferred from “concert of action,” a collection of circumstances, and
   “surrounding circumstances.” Id. at 467-68 (cleaned up).
          We review a district court’s application of a U.S.S.G. § 2D1.1(b)(1)
   enhancement for possession of a dangerous weapon for clear error as a factual
   finding. United States v. King, 773 F.3d 48, 52 (5th Cir. 2014). Here, Reyes
   failed to show that it was “clearly improbable” that the weapons collected
   during the investigation were connected to the methamphetamine



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Case: 20-50173      Document: 00515634342           Page: 3    Date Filed: 11/11/2020




                                     No. 20-50173


   distribution. United States v. Rodriguez, 62 F.3d 723, 724-25 (5th Cir. 1995);
   U.S.S.G. § 2D1.1, cmt. n.11(A). Accordingly, the district court did not
   commit clear error in applying the § 2D1.1(b)(1) enhancement. See King, 773
   F.3d at 52; Rodriguez, 62 F.3d at 725.
          Whether a defendant is a minor or minimal participant is a factual
   determination reviewed for clear error. See United States v. Alaniz, 726 F.3d
   586, 626 (5th Cir. 2013); United States v. Villanueva, 408 F.3d 193, 203 & n.9
   (5th Cir. 2005). In this case, the district court was correct in its finding that
   a minimal role reduction is not appropriate. The evidence does not establish
   that Reyes was among the least culpable of participants in a drug enterprise,
   particularly given that she admitted to knowing that Ballantine sold
   methamphetamine, to selling methamphetamine to his customers, to
   providing new customers to Ballantine, and to selling methamphetamine to
   her own customers on occasion. U.S.S.G. § 3B1.2, cmt. n.4. Nor is Reyes
   entitled to a minor role reduction. Although she may have participated less
   than Ballantine, who organized the drug trafficking enterprise, Reyes has not
   demonstrated that she was “substantially less culpable” than an average
   participant would have been or that her participation was “peripheral” to the
   success of the criminal venture. Villanueva, 408 F.3d at 204.
          Accordingly, the judgment of the district court is AFFIRMED.




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