United States v. Velarde-Jaquez ( 2002 )

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 “safety-valve” sentencing reduction,
pursuant to 18 U.S.C. § 3553 and U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2.
The district court’s findings of fact are, of course, reviewed only
*
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this opinion should not be published and is not precedent except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.
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
“mastermind” behind the offense: Velarde served as the marijuana
supplier; controlled the price, quantity, and delivery of the
substance; supervised the truck driver who crossed the border from
Mexico with the marijuana and delivered it; used a codefendant as
a middleman in conducting negotiations for the sale and delivery of
the marijuana; and acted as the final decisionmaker with respect to
the transaction. See U.S.S.G. § 3B1.1, cmt. n.4. The district
court adopted the PSR’s findings and recommendations, having also
overruled Velarde’s objections.
Velarde offered no evidence in support of his assertion that
his brother was the true organizer, nor did he offer any evidence
to controvert the PSR’s findings regarding his leadership role, as
was his burden. See United States v. Lage, 183 F.3d 374, 383 (5th
Cir. 1999), cert. denied, 528 U.S. 1163 (2000). The district court
did not clearly err in finding Velarde to be a leader or organizer
within the meaning of § 3B1.1(a). See United States v.
Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998), cert. denied, 526
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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 “safety-valve” sentence, pursuant to 18 U.S.C. §
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 court’s leader-
finding disqualified Velarde from safety-valve consideration.
AFFIRMED.
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