United States v. Barahona-Reyes

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-50988
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILMER BARAHONA-REYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CR-5-1
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Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Wilmer Barahona-Reyes (Barahona) appeals the sentence
imposed following his guilty-plea conviction of aiding and
abetting conspiracy to smuggle, transport, and harbor aliens, and
aiding and abetting harboring illegal aliens for financial gain.
Barahona argues that the district court clearly erred by imposing
a two-level upward adjustment pursuant to U.S.S.G. § 3B1.1(c)
when calculating the advisory guidelines range. He contends that
the evidence before the district court shows that his role in the
*
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this opinion should not be published and is not precedent except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. 05-50988
-2-
offense was equal to that of his co-defendants and does not
establish that he supervised or managed their actions.
We agree that the evidence before the district court does
not establish Barahona’s management or supervision of other
participants in the offense as required to apply the enhancement
in § 3B1.1(c). See United States v. Jobe, 101 F.3d 1046, 1068
(5th Cir. 1996). Accordingly, we VACATE Barahona’s sentence and
REMAND to the district court for resentencing. See United States
v. Duhon, 440 F.3d 711, 716 (5th Cir. 2006).