     Case: 14-41374      Document: 00513249971         Page: 1    Date Filed: 10/28/2015




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

                                                                                   FILED
                                                                              October 28, 2015
                                    No. 14-41374
                                  Summary Calendar                              Lyle W. Cayce
                                                                                     Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OMAR FIDENCIO ROJAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 7:13-CR-1154-11


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Omar Fidencio Rojas appeals his conviction and sentence on charges of
possession of various amounts of marijuana with intent to distribute and
money laundering. See 18 U.S.C. § 2; 18 U.S.C. § 1957; 21 U.S.C. § 841(a)(1)
and (b)(1)(B). The district court sentenced him to 180 months of imprisonment
on the marijuana charges and to 120 months of imprisonment on the money
laundering charges, all to run concurrently.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 14-41374

        Rojas argues that the district court erred in admitting testimony at trial
regarding his actions after another participant in the drug organization was
shot. The testimony at trial showed that Thomas Gonzalez, the head of the
drug organization, while out of town, had contacted Rojas and directed him to
find an associate named “Taliban” who had been shot. Gonzalez directed Rojas
to help Taliban and to move stored marijuana out of a house where Taliban
had been guarding it. Further testimony indicated that Rojas found Taliban,
drove him to a location near the hospital, but left him by the street outside of
the hospital. Ultimately, Taliban died.
        Rojas argues that the testimony left the impression that he was called to
help an acquaintance but instead left him for dead by the side of the road.
According to Rojas, sufficient other evidence regarding Rojas’s participation in
the drug operation rendered the Taliban evidence redundant and unduly
prejudicial.
        Evidence of a defendant’s uncharged acts may be either intrinsic or
extrinsic to the charged offense. United States v. Sumlin, 489 F.3d 683, 689
(5th Cir. 2007).        Intrinsic evidence is generally admissible, but extrinsic
evidence is admissible only to show certain facts, and not the defendant’s
character and propensity to act in conformity with such character.             FED.
R. EVID. 401, 402, 404. Both intrinsic and extrinsic evidence, however, must
be excluded if their prejudicial nature outweighs their probative value. FED.
R. EVID. 403; United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc). Whether extrinsic or intrinsic, the evidence that Rojas left his wounded
and dying colleague by the road, rather than bringing him to the hospital,
raises an issue as to prejudice. See FED. R. EVID. 403; Beechum, 582 F.2d at
911.




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                                  No. 14-41374

        We need not decide, however, whether the district court erred in
admitting the testimony regarding Taliban’s death because the Government
demonstrated that any error in its admission was harmless. See United States
v. Ebron, 683 F.3d 105, 131 (5th Cir. 2012); United States v. Sanders, 343 F.3d
511, 519 (5th Cir. 2003). The Government presented ample evidence of Rojas’s
participation in the drug operations and the jury found Rojas not guilty on the
conspiracy charges. Specifically, the testimony at trial showed that Rojas, who
began as an accountant for Gonzalez’s race horse business, later also wrapped
and weighed the marijuana, coordinated the storage and movement of the
marijuana, purchased multiple phones and prepaid phone service for other
participants, communicated with drivers, and transported drug proceeds. The
record persuades us that the jury convicted Rojas, not to punish him for his
treatment of Taliban, but because the evidence supported a finding of guilt for
the drug and money laundering offenses with which he was charged. See
United States v. Royal, 972 F.2d 643, 645-46 (5th Cir. 1992). Accordingly, the
admission of the testimony regarding Taliban’s death, if error at all, was
harmless. Id.
        Rojas additionally argues that the district court erred by increasing his
offense level by three for playing a managerial role in the drug operation.
U.S.S.G. § 3B1.1(b).     The three-level role enhancement applies if “(1) the
defendant exercised managerial control over one or more of the other
participants in the offense and (2) the offense involved five or more
participants.” United States v. Rodriguez-Lopez, 756 F.3d 422, 435 (5th Cir.
2014), citing § 3B1.1, comment. (n.2).           Because the district court’s
determination that Rojas acted as a manager for purposes of § 3B1.1(b) is a
factual finding, we review for clear error. See Rodriguez-Lopez, 756 F.3d at
435.



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                                      No. 14-41374

       Rojas contends that he did not supervise others, but only worked with
them in a family business entirely managed by Gonzalez. The evidence at trial,
however, showed that Gonzalez trusted Rojas to take his place on delivery
trips, to unload and weigh marijuana, to coordinate his own and others’
movement and storage of the marijuana, to purchase multiple phones and
prepaid phone service which Rojas then distributed to other participants in the
organization, to communicate with drivers, and to shuttle drug proceeds
between sources. The uncontroverted evidence in the presentence report, with
information gathered from interviews with other participants in the drug
organization, reflects these same roles as well as indicating that, in Gonzalez’s
absence on trips, Rojas gave instructions and coordinated the activities of
others under Gonzalez’s direction. See United States v. Zuniga, 720 F.3d 587,
591 (5th Cir. 2013); United States v. Cantu-Ramirez, 669 F.3d 619, 629 (5th
Cir. 2012). 1 Further, testimony regarding the Taliban incident showed that
Rojas not only acted independently in a rapidly emerging situation to protect
the drug organization, but also directed others to move Taliban and the
marijuana. For these reasons, the district court’s conclusion that Rojas played
a managerial role “is plausible in light of the record as a whole,” and Rojas has
shown no clear error in the application of the three-level enhancement. See
§ 3B1.1(b); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
       The judgment of the district court is AFFIRMED.




       1This matter does not implicate United States v. Delgado, 672 F.3d 320, 345 (5th Cir.
2012) (en banc), discussed by Rojas, as the record showed that Rojas directed the activity of
other participants in addition to any exercise of responsibility over assets and activities.


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