United States v. Perez ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-50573
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-294-1-SS
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Hector Perez (“Perez”) appeals the sentence imposed
following his guilty-plea convictions for conspiracy to possess
with intent to distribute cocaine, possession with intent to
distribute cocaine, and possession with intent to distribute
cocaine base. Perez argues that the district court erred by
applying a four-level leadership enhancement to his sentence
pursuant to U.S.S.G. § 3B1.1(a). Perez admits that he led one
participant in the criminal activity, but argues that he 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that this opinion should not be published and is not precedent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. 03-50573
-2-
lead any of the other participants. Perez further contends that
leading one participant in a criminal activity that includes five
or more participants is insufficient to support a four-level
leadership enhancement. Perez concedes that this argument is
foreclosed by United States v. Okoli, 20 F.3d 615, 616 (5th Cir.
1994), but asserts that Okoli was incorrectly decided.
The district court’s application of the four-level
leadership enhancement under U.S.S.G. § 3B1.1 was not erroneous
because Perez led at least one participant and the criminal
activity involved five or more participants. See Okoli, 20 F.3d
at 616. As there have been no superceding en banc or Supreme
Court decisions contrary to Okoli, this panel cannot overrule the
holding in Okoli. See Burge v. Parish of St. Tammany, 187 F.3d
452, 466 (5th Cir. 1999). Because Okoli is controlling, we do
not reach Perez’s argument that he only led one of the
participants in the criminal activity.
AFFIRMED.