     Case: 14-41119       Document: 00513498869         Page: 1     Date Filed: 05/10/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                     No. 14-41119                                   FILED
                                   Summary Calendar                             May 10, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ROGELIO GUERRERO, also known as Barrotes, also known as Canas, also
known as Canoso,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:14-CR-502


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Rogelio Guerrero appeals the sentence imposed following his jury-trial
convictions for:      conspiracy to possess, with intent to distribute, 1,000
kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)
and 846; and possession, with intent to distribute, 389.5 kilograms of
marijuana, in violation of §§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-41119    Document: 00513498869     Page: 2   Date Filed: 05/10/2016


                                 No. 14-41119

      Based on Guerrero’s role as an “organizer/coordinator”, his Pre-sentence
Investigation Report (PSR) assessed a base-offense level of 34 and, inter alia,
a three-point enhancement pursuant to Sentencing Guideline § 3B1.1(c).
Guideline § 3B1.1(c) does not, however, provide for a three-level enhancement.
Instead, it states: “If the defendant was an organizer, leader, manager, or
supervisor in any criminal activity other than described in (a) or (b), increase
by 2 levels”. U.S.S.G. § 3B1.1(c).
      On the other hand, § 3B1.1(a) states: “If the defendant was an organizer
or leader of a criminal activity that involved five or more participants or was
otherwise extensive, increase by 4 levels”.     § 3B1.1(a).   And, § 3B1.1(b)
provides: “If the defendant was a manager or supervisor (but not an organizer
or leader) and the criminal activity involved five or more participants or was
otherwise extensive, increase by 3 levels”. § 3B1.1(b). In any event, Guerrero
did not object to this discrepancy in district court; and, on appeal, did not
contend the wrong subsection was applied until his reply brief. Therefore, such
a challenge is waived. See United States v. Rodriguez, 602 F.3d 346, 360–61
(5th Cir. 2010). (Arguably, Guerrero could have been subject to the four-level
enhancement under § 3B1.1(a).)
      Instead, prior to sentencing, Guerrero objected to the PSR, and claimed
he was not a leader or an organizer. At sentencing, the district court: adopted
the PSR; applied the three-level enhancement, bringing Guerrero’s total-
offense level to 37; and sentenced Guerrero to, inter alia, 235 months’
imprisonment. In challenging that sentence, Guerrero asserts: the court found
he was an organizer based on unreliable and inconsistent statements made by
his co-conspirators; and, at most, he was a low-level operative subject to the
direction of others in the conspiracy.




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    Case: 14-41119     Document: 00513498869      Page: 3   Date Filed: 05/10/2016


                                  No. 14-41119

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      A district court’s determination that a defendant was an organizer or
leader of criminal activity is a factual finding reviewed for clear error. United
States v. Rodriguez-Lopez, 756 F.3d 422, 434–35 (5th Cir. 2014). “A factual
finding is not clearly erroneous if it is plausible in light of the record as a
whole.” United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). Moreover,
a PSR generally bears sufficient indicia of reliability to be considered for
sentencing purposes. Id. at 591.
      The evidence in the PSR established: Guerrero planned and supervised
a drug-transporting operation; he exercised decision-making authority by
recruiting, directing, and paying his co-conspirators; and, the conspiracy
involved more than five people. Accordingly, the court did not clearly err by
finding Guerrero was an organizer of the criminal activity and enhancing his
sentence on that basis. See § 3B1.1; § 3B1.1, cmt. n.4; United States v. Cantu-
Ramirez, 669 F.3d 619, 629–30 (5th Cir. 2012) (affirming a § 3B1.1(a)
enhancement).
      AFFIRMED.




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