United States v. Zertuche , 228 F. App'x 462 ( 2007 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  April 24, 2007
    Charles R. Fulbruge III
    Clerk
    No. 06-40813
    Summary Calendar
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    JOSE LUIS ZERTUCHE
    Defendant - Appellant
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 1:05-CR-963-1
    --------------------
    Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
    PER CURIAM:*
    Jose Luis Zertuche appeals the sentence imposed following
    his guilty-plea conviction for possession with intent to
    distribute more than 500 grams of cocaine.
    Zertuche first argues that the district court erred by
    imposing a four-level guidelines enhancement based on the finding
    that he was an organizer or leader of the offense.     See U.S.S.G.
    § 3B1.1(a) (2005).   Although some evidence suggested that another
    co-defendant was the leader or organizer, in light of the
    evidence as a whole, we conclude that the district court did not
    *
    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    this opinion should not be published and is not precedent except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. 06-40813
    -2-
    clearly err in finding that Zertuche was a leader or organizer.
    See United States v. Villanueva, 
    408 F.3d 193
    , 204 (5th Cir.
    2005).   Assuming arguendo that the evidence supported a finding
    that Zertuche’s co-defendant warranted an enhancement as a leader
    or organizer, we note that such a finding would not preclude a
    finding that Zertuche also was a leader or organizer.       See
    § 3B1.1 comment. (n. 4).
    Zertuche argues that the district court erred by imposing a
    two-level enhancement for possession of a firearm in connection
    with the offense.   See § 2D1.1(b)(1).      Again, although there is
    some contrary evidence, in light of the evidence that the firearm
    was found in Zertuche’s closet along with a quantity of cocaine,
    we conclude that the district court did not clearly err in
    imposing this enhancement.    See United States v. Eastland,
    
    989 F.2d 760
    , 770 (5th Cir. 1993).
    Zertuche argues that the district court erred by imposing a
    two-level enhancement for use of a minor to assist in avoiding
    detection of the offense.    See § 3B1.4.     In light of the
    undisputed evidence that a co-defendant was to smuggle a quantity
    of cocaine hidden in an infant carrier seat and that the co-
    defendant’s infant child was brought to the bus station, we
    conclude that the district court did not clearly err in finding
    that this enhancement was warranted.
    Finally, Zertuche argues that the district court erred by
    denying him the benefits of § 5C1.2, which provides for an
    exception to certain mandatory minimum sentences and a two-level
    No. 06-40813
    -3-
    reduction in offense level.     See § 5C1.2; § 2B1.1(b)(7) (2005).
    Zertuche’s argument is premised on the assumption that the
    district court erred in finding that he was an organizer or
    leader.   Because we find that the district court did not clearly
    err in finding that Zertuche was an organizer or leader, the
    district court did not clearly err in finding Zertuche ineligible
    for relief under § 5C1.2.     See United States v. Miller, 
    179 F.3d 961
    , 963-64 (5th Cir. 1999).
    AFFIRMED.
    

Document Info

Docket Number: 06-40813

Citation Numbers: 228 F. App'x 462

Judges: King, Higginbotham, Garza

Filed Date: 4/24/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024