     Case: 08-50962     Document: 00511000173          Page: 1    Date Filed: 01/08/2010



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

                                                                             FILED
                                                                           January 8, 2010
                                     No. 08-50962
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

YOLANDA BENAVIDEZ

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:05-CR-772-8


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Yolanda Benavidez pled guilty to conspiracy and possession with intent to
distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841
and 846. She was sentenced to 240 months of imprisonment on each count, to
be served concurrently, and five years of supervised release. On appeal, she
challenges her sentence. We AFFIRM.
        A defendant’s sentence may be enhanced four levels if she was an
organizer or leader of a criminal activity that involved at least five people or was


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50962   Document: 00511000173 Page: 2        Date Filed: 01/08/2010
                                No. 08-50962

otherwise extensive. U.S.S.G. § 3B1.1(a). The Guidelines provide a three-level
enhancement for a defendant who was a “manager or supervisor (but not an
organizer or leader)” of the criminal activity. Id. § 3B1.1(b). To distinguish
between an organizer or leader and a manager or supervisor, the court should
consider the following factors:
      the exercise of decision making authority, the nature of
      participation in the commission of the offense, the recruitment of
      accomplices, the claimed right to a larger share of the fruits of the
      crime, the degree of participation in planning or organizing the
      offense, the nature and scope of the illegal activity, and the degree
      of control and authority exercised over others.
Id. § 3B1.1, cmt. n.4.     Though Benavidez received a four-level sentence
enhancement for being an organizer or leader of the drug conspiracy, her
sentence was below the advisory range because she was about sixty years old
and had significant health problems.
      Benavidez argues that the district court misunderstood the actual
evidence and relied instead on the Government’s vastly exaggerated summary
of what the evidence revealed about her role in the conspiracy. She also argues
that her sentence is substantively unreasonable.
      Our review of a sentencing decision requires us to make our own analysis
of the Guidelines and decide whether the district court’s application was correct;
however, we examine that court’s factual findings only for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Applying these
standards, we first consider whether the district court committed a significant
procedural error. Such error includes establishing a sentence based on clearly
erroneous facts. Gall v. United States, 552 U.S. 38, 51 (2007). If the sentence
is procedurally sound, then we review the sentence’s substantive reasonableness
for any abuse of discretion. Id.
      The district court concluded there was “ample evidence to justify” finding
that Benavidez was an organizer or leader.          The Government stated at


                                        2
   Case: 08-50962   Document: 00511000173 Page: 3       Date Filed: 01/08/2010
                                No. 08-50962

sentencing that the evidence supported that she recruited six or seven people
who were serving prison sentences. We agree with Benavidez that there was no
evidence to support so large a number. She also alleges that the conspiracy was
not hierarchical in nature with a chain of command, but was fluid, with each
participant coordinating different aspects, and each giving directions and
guidance. We do not find clear evidence to support that view.
      Based on the Government’s mischaracterizations of the evidence,
Benavidez argues that the sentence should be vacated and the district court
required to resentence her based on a proper understanding of the record. We
disagree.   Though there were troubling exaggerations by the prosecutor at
sentencing, the evidence supported that Benavidez was intimately involved in
the coordination of the collection, transportation, and storage of the money. On
at least one occasion, she managed the actual delivery of cocaine.
      In addition to evidence of actual events, she was described by one co-
conspirator as the “main broker” for the organization. Another co-conspirator
said he believed Benavidez controlled the drug trafficking and was taking over
the business from her mother. Two individuals stated in their debriefings that
they received their orders from Benavidez.       At least one person received
thousands of dollars in payments from Benavidez for participation in the
conspiracy. Further, a Drug Enforcement Administration agent testified that
Benavidez’s primary responsibility was to coordinate getting the money from the
drug sales back to Mexico. Benavidez collected and was responsible for large
sums of money.
      It is true that the evidence is not clear as to the number of people
Benavidez recruited into the conspiracy. Benavidez concedes recruiting one
person. When sentencing, the district court did not refer to the number of
recruits and thus did not indicate giving any particular weight to that evidence.
Regardless of that component of her role, the evidence fully supports that
Benavidez exercised control or authority over her co-conspirators.

                                       3
  Case: 08-50962    Document: 00511000173 Page: 4       Date Filed: 01/08/2010
                                No. 08-50962

      The district court did not clearly err in finding that Benavidez was a
leader or organizer in her role as the “main broker” with primary responsibility
for the money. Someone with major responsibilities on the financial side of a
criminal enterprise, who oversees disposition of hundreds of thousands of
dollars, meets the requirements for the leadership enhancement under Section
3B1.1(a). United States v. Fernandez, 559 F.3d 303, 331-32 (5th Cir. 2009).
Benavidez was not required to be the primary leader for this enhancement to
apply. It was enough that she had a leadership role. U.S.S.G. § 3B1.1, cmt. n.4;
United States v. Cabrera, 288 F.3d 163, 175 n.13 (5th Cir. 2002) (more than one
person can be a leader).
      Because there was no procedural error, we proceed to a review of the
substantive reasonableness of the sentence. United States v. Delgado-Martinez,
564 F.3d 750, 751 (5th Cir. 2009). Benavidez does not argue that the district
court abused its discretion in choosing the extent of the downward variance. She
merely argues that the variance may have been greater if the court had known
that the facts regarding her role in the offense were incorrect. As we have
explained, we do not find any mischaracterizations, which concerned the number
of individuals recruited to the conspiracy, to have affected the accuracy of
viewing Benavidez as a leader in the criminal conspiracy.
      Benavidez has not shown that the district court’s selection of a sentence
of 240 months of imprisonment was adversely affected by incorrect information.
The sentence is substantively reasonable.
      AFFIRMED.




                                       4
