United States v. Moses Leyva , 420 F. App'x 443 ( 2011 )

Case: 10-40375 Document: 00511433486 Page: 1 Date Filed: 04/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 4, 2011
No. 10-40375
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MOSES LEYVA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CR-971-2
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Moses Leyva pleaded guilty to conspiring to possess more than 500 grams
of methamphetamine with intent to distribute; the district court sentenced him
to serve 262 months in prison and a five-year term of supervised release. This
direct appeal raises several challenges to Leyva’s sentence. When analyzing
such challenges, Gall v. United States, 552 U.S. 38, 51 (2007), instructs us to
determine whether the sentence imposed is procedurally sound, including
whether the calculation of the advisory guidelines range is correct. We review
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-40375 Document: 00511433486 Page: 2 Date Filed: 04/04/2011
No. 10-40375
the district court’s interpretation and application of the Sentencing Guidelines
de novo and its findings of fact for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Under Leyva’s view, the district court clearly erred by concluding that he
was a leader or organizer of the offense and by imposing a corresponding two-
level adjustment. The record includes evidence indicating that, at a minimum,
Leyva had supervisory authority over at least one other individual involved in
the conspiracy. The imposition of the disputed adjustment is plausible in light
of the entire record and thus is not clearly erroneous. See Cisneros-Gutierrez,
517 F.3d at 764; United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006).
Leyva challenges the district court’s imposition of a firearms adjustment.
Similar to his argument concerning the leadership adjustment, this argument
fails because it is refuted by the record, which shows that another member of the
conspiracy, with whom Leyva lived, knowingly possessed weapons in connection
with drug-related activity. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th
Cir. 2010); United States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir.
1990). Accordingly, the district court did not clearly err by concluding that
Leyva’s coconspirators used firearms during the conspiracy and that these
actions were reasonably foreseeable to Leyva. See Zapata-Lara, 615 F.3d at 390.
Next, Leyva claims that the district court erred by concluding that he
should be held responsible for more than 15 kilograms of methamphetamine.
This argument is unavailing because various portions of the record, when
considered together, show that the district court’s determination that the offense
involved at least 15 kilograms of methamphetamine is plausible and thus not
clearly erroneous. See Cisneros-Gutierrez, 517 F.3d at 764.
The judgment of the district court is AFFIRMED.
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