     Case: 09-40228     Document: 00511002993          Page: 1    Date Filed: 01/13/2010




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

                                                  FILED
                                                                          January 13, 2010
                                     No. 09-40228
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JESUS PECINA-RAMIREZ, also known as Chuy,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:07-CR-537-3


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jesus Pecina-Ramirez pleaded guilty to conspiracy to possess with intent
to distribute marijuana, cocaine, and methamphetamine in violation of 21 U.S.C.
§§ 841 and 846, and conspiracy to commit money laundering in violation of 18
U.S.C. § 1956, and he was sentenced to 324 months and 240 months of
imprisonment, to run concurrently, and five years of supervised release.
        Pecina-Ramirez argues that the district erred by imposing a four-level
increase in his offense level for being an organizer/leader under U.S.S.G.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40228   Document: 00511002993 Page: 2        Date Filed: 01/13/2010
                                No. 09-40228

§ 3B1.1(a). He argues that DEA Agent De La Cruz’s testimony did not show that
he directed the activity of any other participants, but showed only that he was
in the truck with Rivera conducting counter-surveillance under the direction of
the owner of the drugs. He contends that no evidence was presented to support
the agent’s opinion that he was a leader or organizer.
      In reviewing a sentencing decision, this court must consider whether the
district court committed a significant procedural error, such as improperly
calculating the guidelines range, treating the Guidelines as mandatory, or
selecting a sentence based on clearly erroneous facts. Gall v. United States, 552
U.S. 38, 51 (2007). The determination that a defendant is a leader or organizer
under § 3B1.1(a) is a factual finding reviewed by this court for clear error.
United States v. Cabrera, 288 F.3d 163, 173 (5th Cir. 2002).
      DEA Agent De La Cruz’s testimony established that Pecina-Ramirez’s
primary role was to oversee the smuggling of the drugs from Mexico using the
storm drain pipe. There was evidence in the form of intercepted conversations
which showed Pecina-Ramirez discussing dividing payments with his co-leaders,
discussing with the owner of the drugs whether a load should be crossed all at
once or divided for security, discussing payment for seized drugs with the owner,
and receiving reports from those conducting counter-surveillance. This evidence
supports agent De La Cruz’s conclusion that Pecina-Ramirez supervised the
counter-surveillance aspect of the smuggling operation. Pecina-Ramirez does
not dispute the evidence from the debriefings that he recruited two other
participants. The agent’s testimony established that Pecina-Ramirez was one
of the people in charge of the smuggling operation and exercised control or
authority over his co-conspirators, even if he was just carrying out orders from
the owners above him. He was not required to be “the leader” but “a leader” to
receive the adjustment. See § 3B1.1, comment. (n.4); Cabrera, 288 F.3d at 175
n.13 (noting that more than one person can be a leader). The district court’s



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   Case: 09-40228   Document: 00511002993 Page: 3      Date Filed: 01/13/2010
                                No. 09-40228

finding that Pecina-Ramirez was a leader or organizer is not clearly erroneous.
See id. at 173.
      AFFIRMED.




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