USA v. Jesus Mendoza

Filing

UNPUBLISHED OPINION FILED. [09-41124 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 10/08/2010 for Appellant Jesus Fabiel Mendoza [09-41124]

USA v. Jesus Mendoza

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Case: 09-41124

Document: 00511236833

Page: 1

Date Filed: 09/17/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41124 S u m m a r y Calendar September 17, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J E S U S FABIEL MENDOZA, also known as Primo, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:08-CR-1168-14

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* J e s u s Fabiel Mendoza appeals the 120-month sentence imposed following h is guilty plea conviction for conspiracy with intent to distribute more than f i v e kilograms of cocaine and 1,000 kilograms or more of marijuana, and c o n s p ir a c y to launder monetary instruments. Finding no error, we affirm. T h e district court calculated Mendoza's total offense level at 37, which in c lu d e d a two-level enhancement pursuant to U.S. SENTENCING GUIDELINES

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

Case: 09-41124

Document: 00511236833 Page: 2 No. 09-41124

Date Filed: 09/17/2010

M ANUAL § 3B1.1 (2008) based on Mendoza's role as a leader or organizer in the o ffe n s e . The resulting guidelines range was 210 to 262 months. Mendoza argues that the district court erred by relying on insufficient and u n r e lia b le evidence in assessing the two-level § 3B1.1 enhancement. The

d e t e r m in a t io n that a defendant is a leader or organizer is ordinarily a factual fin d in g reviewed by this court for clear error. United States v. Cabrera, 288 F.3d 1 6 3 , 173 (5th Cir. 2002). The Government argues, however, that Mendoza failed t o preserve his objection to the two-level enhancement, and thus, review is for p la in error. The Government also argues that any error was harmless in light o f the imposition of the mandatory minimum sentence. With respect to Mendoza's contention that he did not exercise sufficient c o n t r o l to warrant the enhancement, there was no error, regardless of the s t a n d a r d of review. The facts in the presentence report and Mendoza's own c o n c e s s io n s provide evidence that Mendoza utilized a driver to deliver s u b s t a n t ia l amounts of narcotics and split the profits with him. There was thus n o error in the district court's conclusion that Mendoza was the leader or o r g a n iz e r of at least one other person. See United States v. Giraldo, 111 F.3d 21, 2 4 (5th Cir. 1997) (discussing enhancement based on status as organizer of other c r im in a l participants). To the extent that Mendoza contends that there was no e v id e n c e of the driver's criminal liability, Mendoza failed to raise this specific a r g u m e n t in the district court, and we review for plain error. Because this is a f a c t u a l question that could have been resolved upon objection, there can be no p la in error. See United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991)

(" Q u e s tio n s of fact capable of resolution by the district court upon proper o b je c t io n at sentencing can never constitute plain error."). Even if he had p r e s e r v e d the issue, however, there was sufficient evidence supporting an in fe r e n c e of criminal knowledge, including the splitting of profits and t r a n s p o r t a t io n of large quantities of drugs.

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Case: 09-41124

Document: 00511236833 Page: 3 No. 09-41124

Date Filed: 09/17/2010

I n light of the foregoing, there was no error, plain or otherwise, in the im p o s it io n of the enhancement. Even if the district court had erred, any error w o u ld be harmless given that the court sentenced Mendoza to the mandatory m in im u m of 120 months, which was less than the guidelines range of 135 to 168 m o n th s that Mendoza contends applied without the enhancement. For the fo r e g o in g reasons, the judgment of the district court is AFFIRMED.

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