     Case: 10-10909     Document: 00511558511         Page: 1     Date Filed: 08/02/2011




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

                                                                            FILED
                                                                           August 2, 2011
                                     No. 10-10909
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GABINO TOVIAS, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-62-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Gabino Tovias, Jr., pleaded guilty pursuant to a plea
agreement to one count of conspiring to make false statements during the
acquisition of a firearm and one count of being a felon in possession of a firearm.
He was sentenced to a total of 120 months of imprisonment to be followed by
three years of supervised release. On appeal, he challenges the district court’s
decision to impose a four-level enhancement under U.S.S.G. § 3B1.1(a) to his
offense level for being an organizer or leader of criminal activity involving five

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10909    Document: 00511558511      Page: 2   Date Filed: 08/02/2011

                                  No. 10-10909

or more participants, arguing that the presentence report’s findings establish
that he was a leader or organizer of only three of the four other participants in
the criminal association.
      Our de novo review of the district court’s application of the Guideline
reveals no error. See United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011),
petition for cert. filed, (June 13, 2011) (No. 10-11089). To warrant the four-level
enhancement, a defendant need only be the leader or organizer of one other
participant in a criminal association that involves at least five members. United
States v. Ronning, 47 F.3d 710, 711-12 (5th Cir. 1995). It is not necessary that
he lead or organize every other participant. United States v. Curtis, 635 F.3d
704, 720 (5th Cir. 2011), petition for cert. filed, (June 6, 2011) (No. 10-10931).
Tovias concedes that he exerted control over three participants in the gun-
buying scheme. That is more than sufficient to trigger application of the
enhancement. Accordingly, the district court’s judgement is AFFIRMED.




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