USA v. Roberto Mirele

Filing

UNPUBLISHED OPINION FILED. [11-51191 Affirmed ] Judge: JLW , Judge: JWE , Judge: JEG Mandate pull date is 02/05/2013 for Appellant Roberto Mireles [11-51191]

Case: 11-51191

Document: 00512113855

Page: 1

Date Filed: 01/15/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-51191
Summary Calendar

January 15, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERTO MIRELES,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:11-CR-210-2

Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Roberto Mireles appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute and to distribute
five kilograms or more of cocaine. He argues that the district court erred in
imposing a leadership sentencing enhancement pursuant to U.S.S.G. § 3B1.1(c).
The facts set forth in the Presentence Report (PSR) reflect that Mireles
recruited his codefendant, Ernesto Fierro, and gave him instructions concerning
obtaining the cocaine from two unknown persons and delivering it to a
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51191

Document: 00512113855

Page: 2

Date Filed: 01/15/2013

No. 11-51191
confidential informant. Although Mireles identified a witness who he stated
could corroborate his allegation that Fierro was the actual leader or organizer
of the conspiracy, the Government interviewed the witness and determined that
the witness was not credible. Because Mireles did not present any evidence to
rebut the facts in the PSR, the district court was entitled to rely on those facts.
See United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). Those facts
support the district court’s finding that Mireles acted as a leader or organizer.
See United States v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005); United States
v. Giraldo, 111 F.3d 21, 24-25 (5th Cir. 1997).
Mireles argues that the district court erred in not considering his
statement for purposes of awarding a safety valve adjustment under U.S.S.G.
§ 5C1.2. At sentencing, the Government stated that Mireles had not been
truthful in his debriefing; that he attempted to minimize his role in the offense
by alleging that Fierro was the actual leader or organizer; and that the
information in Mireles’s statement was not fruitful. Thus, the record supports
the district court’s determination that Mireles was not entitled to the safety
valve adjustment because he was not truthful with the Government in his
debriefing and because the district court determined that he was a leader or
organizer in the conspiracy. Therefore, Mireles did not meet his burden to
establish that he was entitled to the safety valve adjustment. See United States
v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).
AFFRIMED.

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