     Case: 10-50956     Document: 00511518645          Page: 1    Date Filed: 06/23/2011




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

                                                 FILED
                                                                            June 23, 2011
                                     No. 10-50956
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

ELEAZAR HERRERA,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                            USDC No. 3:09-CR-1565-18


Before WIENER, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Eleazar Herrera appeals the sentence imposed following his guilty plea
conviction for conspiracy to transport unlawful aliens. Herrera argues that the
district court erred by imposing a two-level enhancement under U.S.S.G. § 3B1.1
based on the finding that he was an organizer or leader of the offense and by
denying him a two-level “minor role” decrease under U.S.S.G. § 3B1.2. He
contends that he himself received orders from another of his co-conspirators,
Guillermo Lopez-Nunez.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50956    Document: 00511518645      Page: 2    Date Filed: 06/23/2011

                                   No. 10-50956

      Section 3B1.1(c) authorizes a two-level increase in a defendant’s offense
level “[i]f the defendant was an organizer, leader, manager, or supervisor in any
criminal activity.” We review the district court’s determination that Herrera
was an organizer or leader of the offense for clear error. See United States v.
Cabrera, 288 F.3d 163, 173 (5th Cir. 2002) (per curiam). There may be more
than one leader or organizer in a criminal organization or conspiracy. United
States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001). Thus, even if Lopez-Nunez
was a leader, this does not preclude a finding that Herrera also was a leader or
organizer of the criminal activity.
      The facts contained in the presentence investigation report (PSR), which
are uncontested by Herrera, reflect that Herrera was involved in deciding how
and by whom undocumented aliens would be transported, he was involved in
obtaining the payments for the alien smuggling, and he recruited others to help
him do so. The PSR also reflects that Herrera directed others to transport,
harbor, and feed undocumented aliens.         The PSR supports a finding that
Herrera directed at least one other person in the conspiracy. Such a finding is
sufficient to support the enhancement. United States v. Curtis, 635 F.3d 704,
720 (5th Cir. 2011). Accordingly, the district court did not clearly err in applying
the organizer or leader enhancement. See Cabrera, 288 F.3d at 174-75. Nor did
the district court clearly err in finding that Herrera did not play a minor role in
the offenses for purposes of a downward adjustment under § 3B1.2. See United
States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005).
      AFFIRMED.




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