     Case: 10-40354 Document: 00511337217 Page: 1 Date Filed: 01/03/2011




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

                                                 FILED
                                                                           January 3, 2011
                                     No. 10-40354
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HECTOR YZAGUIRRE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:06-CR-971-1


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
       Hector Yzaguirre pleaded guilty to one charge of conspiring to possess
more than 500 grams of methamphetamine with intent to distribute; the district
court sentenced him to serve 324 months in prison and a five-year term of
supervised release. This direct appeal raises several challenges to Yzaguirre’s
sentence. When analyzing such challenges, Gall v. United States, 552 U.S. 38,
51 (2007), instructs us to determine whether the sentence imposed is
procedurally sound, including whether the calculation of the advisory 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-40354 Document: 00511337217 Page: 2 Date Filed: 01/03/2011

                                   No. 10-40354

range is correct. We review the district court’s interpretation and application of
the Sentencing Guidelines de novo and its findings of fact for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Under Yzaguirre’s view, the district court clearly erred by concluding that
he was a leader or organizer of the offense and by imposing a corresponding
adjustment. The record includes evidence indicating that Yzaguirre acted as a
leader or organizer of the conspiracy by exerting authority over others, that he
ran the drug business underlying the conspiracy, and that he had others who
worked for him. The imposition of the disputed adjustment is plausible in light
of the entire record and thus is not clearly erroneous. See Cisneros-Gutierrez,
517 F.3d at 764; United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006).
      Yzaguirre challenges the district court’s imposition of a firearms
adjustment. Similar to his claim concerning the leadership adjustment, this
argument fails because it is refuted by the record, which shows that several
other members of the conspiracy knowingly possessed weapons in connection
with drug-related activity. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th
Cir. 2010); United States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir.
1990). Accordingly, the district court did not clearly err by concluding that
Yzaguirre’s coconspirators used firearms during the conspiracy and that these
actions were reasonably foreseeable. See Zapata-Lara, 615 F.3d at 390.
      Next, Yzaguirre claims that the district court erred by concluding that he
should be held responsible for more than 15 kilograms of methamphetamine.
This argument is unavailing because various portions of the record, when
considered together, show that the district court’s determination that the offense
involved at least 15 kilograms of methamphetamine is plausible and thus not
clearly erroneous. See Cisneros-Gutierrez, 517 F.3d at 764.
      According to Yzaguirre, a proffer letter was breached when information he
provided during debriefing was used to sentence him. This argument, which is
considered for plain error only because he did not present it to the district court,

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                                 No. 10-40354

is unavailing because our review of the record shows that the information used
to calculate Yzaguirre’s guidelines sentencing range was gleaned from his
coconspirators and cooperating individuals, rather than from him. See Puckett
v. United States, 129 S. Ct. 1423, 1428 (2009).
      Finally, Yzaguirre argues that the district court erred by imposing a
sentencing adjustment based on a finding that his offense involved the
importation of drugs. Our review of the record, including the presentence report
and sentencing hearing, shows that no such adjustment was imposed.
Consequently, we decline to consider this argument.
      The judgment of the district court is AFFIRMED.




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