United States v. Tovar

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 3, 2008
No. 06-50429
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAFAEL EDMUNDO TOVAR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CR-105
Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rafael Edmundo Tovar pleaded guilty to conspiracy to distribute more
than 50 grams of methamphetamine, possession with the intent to distribute
more than 50 grams of methamphetamine, and conspiracy to distribute more
than 200 grams of methamphetamine. The district court sentenced him to 360
months of imprisonment, five years of supervised release, and a $300 special
assessment. Tovar now appeals his sentence.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-50429
Ordinarily, this court reviews a district court’s interpretation and
application of the Sentencing Guidelines de novo and reviews a district court’s
factual findings for clear error. United States v. Brazell, 489 F.3d 666, 668 (5th
Cir. 2007). Issues that were not raised in the district court are reviewed for
plain error only. United States v. Myers, 198 F.3d 160, 166 (5th Cir. 1999).
Tovar argues that the district court erred in applying a four-level
enhancement for his being a leader or organizer because the presentence report
stated that he was a manager or supervisor, a finding that warrants only a
three-level enhancement. See U.S.S.G. § 3B1.1. The Government argues that
Tovar did not adequately raise this issue in the district court to preserve it for
appellate review and that our review should therefore be for plain error.
At sentencing, both parties interchanged § 3B1.1’s terminology, arguing
whether Tovar was a “leader and manager.” Although the district court did at
one point refer to the question at issue as whether Tovar was a
“supervisor/manager,” it also questioned whether Tovar was the “head of the
conspiracy.” The district court did not specifically state that it found that Tovar
was a leader or organizer, although it applied the four-level enhancement
consistent with such a finding. Under either standard of review advanced by the
parties, we conclude that the application of the four-level enhancement was not
error. The testimony of DEA Agent Randel Gillette at Tovar’s sentencing
hearing was adequate to support a finding that Tovar was the leader or
organizer of the criminal activity.
Tovar also argues that his 360-month sentence is unreasonable. He
argues that the district court did not adequately consider that the instant
conviction is his first felony conviction and did not adequately consider the need
for the sentence to provide just punishment for the offense.
Where, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is entitled to a rebuttable presumption
of reasonableness. See United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir.
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No. 06-50429
2006). To rebut the presumption, Tovar must demonstrate that the sentence
“(1) does not account for a factor that should have received significant weight,
(2) gives significant weight to an irrelevant or improper factor; or (3) represents
a clear error of judgment in balancing the sentencing factors” and “falls so far
afoul of one of [these standards] as to constitute a clear error in the court’s
exercise of its broad sentencing discretion.” United States v. Nikonova, 480 F.3d
371, 376 (5th Cir.) (internal quotation marks and citation omitted), cert. denied,
128 S. Ct. 163 (2007). Tovar has not made the showing required to rebut the
presumption that his sentence within a properly calculated guidelines range is
reasonable. The judgment of the district court is AFFIRMED.
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