                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                           December 20, 2006

                                                                      Charles R. Fulbruge III
                                                                              Clerk
                                   No. 06-40164
                                 Summary Calendar


                          UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

 CANDIDO ARREOLA-ALBARRAN, also known as Igeniero, also known as
  Engineer, also known as El Tigre, also known as Cesar Torres-
                   Avila, also known as El Tio,

                                                         Defendant-Appellant.

                          --------------------
              Appeal from the United States District Court
                   for the Southern District of Texas
                         USDC No. 7:04-CR-290-1
                          --------------------

Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.

PER CURIAM:*

              Candido Arreola-Albarran (Arreola) pleaded guilty to

conspiracy to possess with intent to distribute more than 1000

kilos    of   marijuana    and    more   than   five   kilos   of    cocaine      and

conspiracy to commit money laundering as part of an extensive

narcotics conspiracy.

              He first argues that the district court should have

capped his offense level, before making any downward adjustments,

     *
           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that this opinion should not be published and is not precedent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.
at 43.     As Arreola raises this issue for the first time on appeal,

we review for plain error.       See United States v. Brown, 437 F.3d

450, 451, cert. denied, 126 S. Ct. 2310 (2006).                    We previously

rejected a similar argument in an unpublished but precedential

decision.     See United States v. Wood, No. 94-10217, slip op. at 15

(5th Cir. Feb. 8, 1995) (quoting United States v. Caceda, 990 F.2d

707, 710 (2d Cir. 1993).      Accordingly, Arreola has not shown plain

error.

             Arreola also challenges the two points the district court

assessed     for    the   possession       of     firearms       under    U.S.S.G.

§ 2D1.1(b)(1).      We review the district court’s application of the

Sentencing Guidelines de novo and review factual findings for clear

error.     United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.

2006).       The   district   court   may       adopt    facts   stated    in   the

presentence report (PSR) if they have an adequate basis and the

defendant does not rebut them.         Id.

             The facts contained in the PSR repeatedly reveal firearms

in   the   organization’s     stash   houses      with    drug    paraphernalia.

Moreover, when officers arrested Arreola in North Carolina, they

observed a firearm within easy reach of him in a trailer that also

contained narcotics.      Arreola has failed to rebut the evidence of

the use of firearms in the conspiracy.                  The record as a whole

demonstrates that the district court did not clearly err in finding

that Arreola possessed a dangerous weapon in connection with the

conspiracy.

                                       2
           Arreola also argues that the district court clearly erred

in assessing a U.S.S.G. § 3B1.1(a) four-level adjustment for his

leadership role in the offense. Again, Arreola has failed to rebut

the considerable evidence in the record that he indeed exercised

such a leadership role by directing other individuals in the

organization, funding the activities of the organization, and

recruiting new members.        There is no clear error in the district

court assessment of four points for Arreola’s role in the offense.

           Lastly, Arreola argues that the district court erred in

failing to depart downward in recognition of Arreola’s assistance

to the Government. The district court’s refusal to depart pursuant

to U.S.S.G. § 5K1.1 is not reviewable unless the district court

mistakenly believed that it had no discretion to so depart. United

States v. Burleson, 22 F.3d 93, 94-95 (5th Cir. 1994).              There is no

evidence in the record that the district court misunderstood its

authority under § 5K1.1.         A district court has no authority to

depart on the basis of substantial assistance under § 5K1.1 absent

a Government motion.      United States v. Solis, 169 F.3d 224, 226

(5th Cir. 1999).       Thus, the district court’s decision is not

reviewable.     Id.; Burleson, 22 F.3d at 94-95.

           To   the   extent   that    Arreola      is   contending   that   the

district   court’s    decision    to       impose   a    sentence   within   the

Guidelines range is unreasonable, he has failed to rebut the

presumption of reasonableness.              See United States v. Alonzo,

435 F.3d 551, 554 (5th Cir. 2006).

                                       3
For these reasons, Arreola’s sentence is AFFIRMED.




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