USA vs. Velarde-Jaquez, (5th Cir. 2002)

Docket Number: 01-10726

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined t hat this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10726 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HERIBERTO VELARDE-JACQUEZ, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas (4:00-CR-292-2-A) January 8, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges: PER CURIAM: * Heriberto Velarde-Jacquez challenges the sentence imposed following his guilty-plea conviction for possession with the intent to distribute 315 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). He maintains the district court erred: in finding he was a leader or organizer of the offense, resulting in a four-level sentencing increase, pursuant to U.S.S.G. § 3B1.1(a); and in failing to award a two-level § 3553 and U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2. The district courtÂ’s findings of fact are, of course, reviewed only for clear error. E .g., United States v. Gonzales , 40 F.3d 735, 738 (5th Cir. 1994).

Regarding the leader or organizer increase, Velarde contends: he was incorrectly labeled a leader in the absence of any evidence he had a larger share in the fruits of the crime or recruited or exercised any control over others; his brother Manuel was the true leader; and he acted only as directed by Manuel.

The presentence report (PSR) determined that Velarde was the § 3B1.1, cmt. n.4. The district court adopted the PSR§ 3B1.1(a). S ee United States v. Posada-Rios , 158 F.3d 832, 878 (5th Cir. 1998), cert. denied , 526 U.S. 1031 (1999), and cert. denied , 526 U.S. 1080 (1999), and cert. denied , 526 U.S. 1137 (1999). Velarde also argues that he was entitled to a two-level reduction, or a § 3553 and U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2. Velarde had to satisfy all five components of 18 U.S.C. § 3553(f), one of which provides that the defendant not be an organizer, leader, manager, or supervisor of others in the offense. The district courtÂ’s leaderfinding disqualified Velarde from safety-valve consideration.

AFFIRMED.