United States v. Hernandez ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2007
No. 05-41817
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ELHIM HERNANDEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-952-1
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges
PER CURIAM:*
Elhim Hernandez pleaded guilty to conspiracy to possess with intent to
distribute and possession with intent to distribute over 100 kilograms of
marijuana, and he was sentenced to 78 months of imprisonment and four years
of supervised release.
Hernandez argues on appeal that the district court clearly erred in
increasing his offense level pursuant to U.S.S.G. § 3B1.1(c) based on his role as
*
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should not be published and is not precedent except under the limited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. 05-41817
an organizer, leader, supervisor, or manager. Because testimony at sentencing
supports a determination that Hernandez asserted control or influence over at
least one other participant in the crime, the district court did not clearly err in
applying the § 3B1.1(c) adjustment. See § 3B1.1, comment. (n.2); United States
v. Rose, 449 F.3d 627, 633 (5th Cir. 2006).
Hernandez also argues on appeal that the district court clearly erred in
increasing his offense level by two levels pursuant to U.S.S.G. § 3C1.1 for
obstruction of justice. However, the district court did not clearly err in applying
the § 3C1.1 adjustment because its determination that Hernandez’s statements
to his co-defendants constituted threats against speaking with authorities was
plausible in light of the record as a whole. See United States v. Mann, 493 F.3d
484, 498 (5th Cir. 2007); Rose, 449 F.3d at 633; United States v. Brown, 54 F.3d
234, 242 (5th Cir. 1995).
AFFIRMED.
2