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United States v. Cruz ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50490
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ISMAEL CRUZ,
Defendant-Appellant.
********************
Consolidated with
00-50492 and 00-50493
********************
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CRUZ, also known as Pepe,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-1640-H
USDC No. EP-00-CR-92-H
USDC No. EP-00-CR-1000-H
--------------------
April 30, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Jose Ismael Cruz appeals from the district court's sentence
following a guilty plea to one count of importing into the United
*
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that this opinion should not be published and is not precedent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. 00-50490
No. 00-50492
No. 00-50493
-2-
States 1,000 or more kilograms of marijuana in violation of 21
U.S.C. §§ 952(a) and 960(a)(1), one count of possession with
intent to distribute 1,000 or more kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1), and three
counts of assaulting a federal officer in violation of 18 U.S.C.
§ 111.   Finding no error, we affirm.
The Government contends that this appeal should be dismissed
due to Cruz's waiver of his right to appeal in the plea
agreements.    We find, however, that Cruz was not properly
admonished by the district court and that the waiver is invalid.
See United States v. Robinson,
    187 F.3d 516
    , 517-18 & n.1 (5th
Cir. 1999); Fed. R. Crim. P. 11(c)(6).
Cruz argues that the district court's sentence enhancement
for being a leader or organizer of a criminal activity that
involved five or more participants or was otherwise extensive was
improper because he did not direct at least five participants in
the drug offenses.    We have consistently held that a defendant
need direct only one of the five culpable participants for this
enhancement.    See United States v. Washington,
    44 F.3d 1271
    , 1281
(5th Cir. 1995); United States v. Okoli,
    20 F.3d 615
    , 616 (5th
Cir. 1994).    We find that the facts in the PSR provide sufficient
evidence that Cruz was a leader or organizer.      See United States
v. Ayala,
    47 F.3d 688
    , 690 (5th Cir. 1995); U.S.S.G. § 3B1.1,
comment. (n.4).    There is no clear error.
Cruz next argues that the district court erred by enhancing
his sentence for obstruction of justice.      We find that the
No. 00-50490
No. 00-50492
No. 00-50493
-3-
district court was not clearly erroneous to apply this
enhancement.     See United States v. Singer,
    970 F.2d 1414
    , 1419
(5th Cir. 1992); United States v. Alfaro,
    919 F.2d 962
    , 966 (5th
Cir. 1990).
Finally, Cruz argues that his sentence for assault should
not have been enhanced due to the victims' status as law
enforcement officers because he pleaded guilty to the offense of
assault on a federal officer.    Cruz's argument is foreclosed by
our prior decisions.     See United States v. Kings,
    981 F.2d 790
    ,
792-93 (5th Cir. 1993); United States v. Kleinebreil,
    966 F.2d 945
    , 955 (5th Cir. 1992).    Cruz also argues for the first time on
appeal that the official victim status adjustment requires that
the assault occur during the commission of another crime.    We do
not find error in Cruz's sentence, but even assuming there was
error in determining the base offense level for assault, such
error was harmless.     See United States v. Sidhu,
    130 F.3d 644
    ,
652 (5th Cir. 1997).
AFFIRMED.