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 2006-12

United States v. Arreola-Albarran , 210 F. App'x 441 ( 2006 )


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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                           December 20, 2006
Charles R. Fulbruge III
Clerk
No. 06-40164
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CANDIDO ARREOLA-ALBARRAN, also known as Igeniero, also known as
Engineer, also known as El Tigre, also known as Cesar Torres-
Avila, also known as El Tio,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-290-1
--------------------
Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.
PER CURIAM:*
Candido Arreola-Albarran (Arreola) pleaded guilty to
conspiracy to possess with intent to distribute more than 1000
kilos    of   marijuana    and    more   than   five   kilos   of    cocaine      and
conspiracy to commit money laundering as part of an extensive
narcotics conspiracy.
He first argues that the district court should have
capped his offense level, before making any downward adjustments,
*
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that this opinion should not be published and is not precedent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.
at 43.     As Arreola raises this issue for the first time on appeal,
we review for plain error.       See United States v. Brown,
    437 F.3d 450
    , 451, cert. denied,
    126 S. Ct. 2310
     (2006).                    We previously
rejected a similar argument in an unpublished but precedential
decision.     See United States v. Wood, No. 94-10217, slip op. at 15
(5th Cir. Feb. 8, 1995) (quoting United States v. Caceda,
    990 F.2d 707
    , 710 (2d Cir. 1993).      Accordingly, Arreola has not shown plain
error.
Arreola also challenges the two points the district court
assessed     for    the   possession       of     firearms       under    U.S.S.G.
§ 2D1.1(b)(1).      We review the district court’s application of the
Sentencing Guidelines de novo and review factual findings for clear
error.     United States v. Caldwell,
    448 F.3d 287
    , 290 (5th Cir.
2006).       The   district   court   may       adopt    facts   stated    in   the
presentence report (PSR) if they have an adequate basis and the
defendant does not rebut them.
    Id.
    The facts contained in the PSR repeatedly reveal firearms
in   the   organization’s     stash   houses      with    drug    paraphernalia.
Moreover, when officers arrested Arreola in North Carolina, they
observed a firearm within easy reach of him in a trailer that also
contained narcotics.      Arreola has failed to rebut the evidence of
the use of firearms in the conspiracy.                  The record as a whole
demonstrates that the district court did not clearly err in finding
that Arreola possessed a dangerous weapon in connection with the
conspiracy.
2
Arreola also argues that the district court clearly erred
in assessing a U.S.S.G. § 3B1.1(a) four-level adjustment for his
leadership role in the offense. Again, Arreola has failed to rebut
the considerable evidence in the record that he indeed exercised
such a leadership role by directing other individuals in the
organization, funding the activities of the organization, and
recruiting new members.        There is no clear error in the district
court assessment of four points for Arreola’s role in the offense.
Lastly, Arreola argues that the district court erred in
failing to depart downward in recognition of Arreola’s assistance
to the Government. The district court’s refusal to depart pursuant
to U.S.S.G. § 5K1.1 is not reviewable unless the district court
mistakenly believed that it had no discretion to so depart. United
States v. Burleson,
    22 F.3d 93
    , 94-95 (5th Cir. 1994).              There is no
evidence in the record that the district court misunderstood its
authority under § 5K1.1.         A district court has no authority to
depart on the basis of substantial assistance under § 5K1.1 absent
a Government motion.      United States v. Solis,
    169 F.3d 224
    , 226
(5th Cir. 1999).       Thus, the district court’s decision is not
reviewable.     Id.; Burleson,
    22 F.3d at 94-95
    .
To   the   extent   that    Arreola      is   contending   that   the
district   court’s    decision    to       impose   a    sentence   within   the
Guidelines range is unreasonable, he has failed to rebut the
presumption of reasonableness.              See United States v. Alonzo,
    435 F.3d 551
    , 554 (5th Cir. 2006).
3
For these reasons, Arreola’s sentence is AFFIRMED.
4