     Case: 12-51044       Document: 00512354747         Page: 1     Date Filed: 08/27/2013




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

                                                                            FILED
                                                                          August 27, 2013
                                     No. 12-51044
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

BILLY OMAR RUVALCABA-MADRID,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:11-CR-2903-4


Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Billy Omar Ruvalcaba-Madrid appeals the sentence imposed following his
guilty-plea conviction for: one count of conspiracy to possess, with intent to
distribute, 50 kilograms or more of marijuana, in violation of 21 U.S.C. § 846;
and two counts of possession, with intent to distribute, marijuana, in violation
of 21 U.S.C. § 841(a)(1). He contends the district court erred in finding he had
an aggravating role in the offense under Guideline § 3B1.1(b), claiming the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-51044

evidence did not support finding he was a manager or supervisor of the charged
conspiracy.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
      A district court’s finding a defendant was a manager or supervisor,
pursuant to Guideline § 3B1.1(b), is reviewed for clear error. United States v.
Rose, 449 F.3d 627, 633 (5th Cir. 2006). The finding is clearly erroneous only if
it is implausible in the light of the record as a whole. Id.
      The presentence investigation report (PSR) set forth various instances
during which Ruvalcaba issued orders and directed the activities of others.
Although he disagreed with the PSR’s characterization of his role in the offense
and its interpretation of an Agent’s call notes, he did not demonstrate in district
court that the information in the PSR was materially untrue. See United States
v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (defendant bears burden of
demonstrating information relied on by sentencing court is “materially untrue”).
      Moreover, the record reflects the district court reviewed the wiretap
applications, affidavits, and transcripts when ruling on Ruvalcaba’s motion to
suppress. In denying the objection to the aggravating-role adjustment, the
district court explained it was very familiar with the case and was well aware
of the orders Ruvalcaba gave, as contained in the wiretap transcripts, including
those to co-conspirator Feliciano Alcala-Oaxaca. The district court’s finding
Ruvalcaba was a manager or supervisor of the conspiracy was therefore

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                                  No. 12-51044

plausible in the light of the record as a whole; and, as a result, he has not shown
the requisite clear error. See Rose, 449 F.3d at 633-34.
      AFFIRMED.




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