United States v. Lorenzo ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-40426
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN LORENZO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-358-2
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Lorenzo pleaded guilty to conspiracy to possess with intent to
distribute 4.97 kilograms of cocaine and was sentenced to 97 months in prison.
Lorenzo appealed his sentence, contending that the district court clearly erred
in imposing a three-level enhancement pursuant to U.S.S.G. § 3B1.1(b) because
the evidence did not establish he was a manager or supervisor in the conspiracy.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40426
A defendant’s base offense level may be increased three levels pursuant
to § 3B1.1(b) “[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.” § 3B1.1(b). “To qualify for an adjustment under
this section, the defendant must have been the . . . manager[] or supervisor of
one or more other participants.” § 3B1.1, comment. (n.2). This court reviews the
district court’s determination that a defendant was a manager or supervisor
under § 3B1.1(b) for clear error. United States v. Fullwood, 342 F.3d 409, 415
(5th Cir. 2003). Where a factual finding is plausible in light of the record as a
whole, it is not clearly erroneous. Id.
The district court did not clearly err when it increased Lorenzo’s base
offense level pursuant to § 3B1.1(b) because the record evidence reflects that
Lorenzo managed or supervised Roseangela Martinez. Lorenzo directed her
transportation of his portion of the cocaine, he paid for her flight to Texas, he
agreed to pay her for successful transportation of the cocaine, and he delivered
the cocaine to her for transport. Therefore, the district court’s finding that
Lorenzo occupied an aggravating role is plausible in light of the record as a
whole and is not clearly erroneous. See id. The judgment is AFFIRMED.
2