United States v. Ibarra

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 13, 2008
No. 07-10624
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANTONIO IBARRA
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-204-3
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Antonio Ibarra pleaded guilty to possession with intent to distribute more
than 50 kilograms of marijuana, and aiding and abetting. He was sentenced to
97-months’ imprisonment. Ibarra challenges only his sentence, asserting that
the district court erred, under the advisory Guidelines, by not awarding him an
adjustment for acceptance of responsibility and by increasing his offense level
for his supervisory role. Although the Guidelines are advisory, the district court
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10624
is still required to properly apply them in determining the advisory sentencing
range. Gall v. United States, 128 S. Ct. 586, 597 (2007).
In the light of Ibarra’s denial of involvement on any date, other than that
for which he was charged, but the record showing otherwise, as well as our very
deferential standard of review for acceptance-of-responsibility denials, the
adjustment denial was proper. See United States v. Solis, 299 F.3d 420, 458 (5th
Cir. 2002). Additionally, because the record, including testimony at the
sentencing hearing, showed Ibarra hired another person to guard and coordinate
the transportation of the marijuana, the determination that Ibarra assumed a
supervisory role in the offense was not clearly erroneous. See United States v.
Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005); United States v. Jobe, 101 F.3d
1046, 1065 (5th Cir. 1996); U.S.S.G. § 3B1.1, cmt. n.2.
AFFIRMED.
2