     Case: 13-40669      Document: 00512709451         Page: 1    Date Filed: 07/23/2014




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

                                    No. 13-40669                                FILED
                                  Summary Calendar                          July 23, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS ALBERTO HERNANDEZ-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-64-2


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Luis Alberto Hernandez-Garcia appeals the sentences imposed following
his convictions of possessing with the intent to distribute cocaine and
marijuana. See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B). He
argues that the district court erred when, in calculating his advisory
sentencing guidelines range, it imposed a two-level enhancement under
U.S.S.G. § 3B1.1(c), based on his role as a manager of the criminal activity.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40669     Document: 00512709451      Page: 2   Date Filed: 07/23/2014


                                  No. 13-40669

      In reviewing a sentence, we must ensure that the sentencing court
“committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range.” Gall v. United States, 552 U.S.
38, 51 (2007). We review for clear error the district court’s factual findings
underlying its decision to apply a guidelines enhancement and review de novo
its application and interpretation of the Guidelines. United States v. Zuniga,
720 F.3d 587, 590 (5th Cir. 2013).
      We review claims raised for the first time on appeal for plain error only.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To prevail
on plain-error review, a defendant must show that an error occurred, that the
error was clear or obvious, and that the error affected his substantial rights.
Id. at 392. If those factors are established, the decision to correct the forfeited
error is within our sound discretion, which we will not exercise unless the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Hernandez-Garcia contends that the information in the presentence
report (PSR) pertaining to his recruitment of a co-defendant was unreliable.
However, the PSR was based on information the Probation Officer obtained
from Drug Enforcement Administration (DEA) investigative reports and
interviews with the DEA case agent.          It was sufficiently reliable to be
considered for sentencing purposes. See United States v. Manthei, 913 F.2d
1130, 1137-38 (5th Cir. 1990).
      Further, Hernandez-Garcia contends that the facts in the PSR, even if
reliable, do not reflect that he acted on behalf of the criminal organization in a
managerial capacity.      However, the district court’s factual findings are
plausible based on the record as a whole. According to the PSR, Hernandez-
Garcia recruited his co-defendant for the drug trafficking organization so it



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                                 No. 13-40669

could use his tractor-trailer to transport loads of controlled substances,
monitored and gave directions to the driver of a load, provided payment for the
driver of a load, assisted in coordinating delivery of a load, and demanded an
explanation from the driver after certain loads were seized. The district court’s
conclusion that Hernandez-Garcia acted as a manager of at least one other
participant in the relevant criminal conduct was not clearly erroneous. See
United States v. Brown, 727 F.3d 329, 341 (5th Cir. 2013).
      Finally, for the first time on appeal, Hernandez-Garcia argues that the
district court misapplied the Guidelines when it enhanced his sentence
pursuant to § 3B1.1(c). Because his offense involved at least five participants,
Hernandez-Garcia contends that the district court’s only options were to
impose a three-level enhancement under § 3B1.1(b), or no enhancement at all.
      Hernandez-Garcia has not shown reversible plain error. He has not cited
any controlling Fifth Circuit precedent supporting his assertion. Generally,
we will not find plain error if this court has not previously addressed an issue.
See United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009). Although the
plain reading of a Guideline may, in some cases, be sufficient to establish the
existence of an apparent error, the Guideline in question reveals no such error.
In any event, Hernandez-Garcia has not shown that the alleged error affected
his substantial rights. Because the alleged error benefitted Hernandez-Garcia,
he cannot show a reasonable probability that, but for the error, he would have
received a shorter sentence. See United States v. Blocker, 612 F.3d 413, 416
(5th Cir. 2010).
      AFFIRMED.




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