United States v. Sejuelas ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 19, 2004
Charles R. Fulbruge III
Clerk
No. 04-40253
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WILBERT R SEJUELAS, also known as Jaime
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CR-193-RC-WCR-1
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Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
Wilbert R. Sejuelas appeals the 166-month sentence imposed
for his conviction on a guilty plea to a charge of conspiracy to
possess with intent to distribute five kilograms or more of
cocaine and fifty kilograms of cocaine base. Sejuelas asserts
that the district court clearly erred when it found that he held
the role of a manager or supervisor in the offense and that the
conspiracy involved at least five participants. He argues, inter
*
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this opinion should not be published and is not precedent except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.
No. 04-40253
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alia, that Devison Rinsco Torres (“Torres”) was not a participant
in the conspiracy.
Section 3B1.1(b), U.S.S.G., authorizes a three-level
increase to the base offense level “[i]f the defendant was a
manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive.” We review for clear error a district
court’s findings under U.S.S.G. § 3B1.1 that a defendant
qualifies for an adjustment based on his role in the offense and
that the offense involved five participants. See United States
v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001); United States v.
Narvaez, 38 F.3d 162, 166 (5th Cir. 1994). A finding is not
clearly erroneous if it is “‘plausible in light of the record as
a whole.’” Miranda, 248 F.3d at 446 (citation omitted).
The presentence report (“PSR”) provided that Sejuelas
recruited a co-conspirator; directed a co-conspirator to
transport drugs on three occasions; on two occasions, took
control of the drugs and the transporting vehicle when the
vehicle reached its destination; arranged for assistance,
alternate transportation, and transference of the cocaine when a
vehicle became impaired; and negotiated the fee to be paid for
transportation of the drugs. Further, Sejuelas exercised
dominion and control over a significant quantity of cocaine. In
addition, the PSR provided that Torres assisted with the
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transportation of the drugs and transferred the spare tire that
contained the drugs from one vehicle to another.
The district court was free to rely on the information in
the PSR because Sejuelas did not present evidence to rebut the
PSR. See United States v. Ayala, 47 F.3d 688, 690 (5th Cir.
1995). The PSR demonstrated that Sejuelas exercised decision-
making power, participated extensively in the crime, recruited at
least one person for the conspiracy; and exercised control and
authority over others who participated in the drug conspiracy.
The PSR provided information from which the district court could
infer that Torres was a participant in the conspiracy. See
United States v. Lage, 183 F.3d 374, 383-84 (5th Cir. 1999);
United States v. Narvaez, 38 F.3d 162, 166 (5th Cir. 1994). The
fact that Torres was not indicted does not negate his criminal
responsibility. See Lage, 183 F.3d at 383-84.
The district court’s findings that Sejuelas’s role in the
offense warranted an increase of three levels under U.S.S.G.
§ 3B1.1 are plausible in light of the record as a whole and are
not clearly erroneous. Miranda, 248 F.3d at 446; Narvaez, 38
F.3d at 166. Accordingly, the judgment of the district court is
AFFIRMED.