     Case: 18-31039         Document: 00515270290      Page: 1    Date Filed: 01/14/2020




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

                                                                             FILED
                                        No. 18-31039                  January 14, 2020
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                 Plaintiff - Appellee

v.

LUIS ALBERTO GAMA-PERALTA, also known as Luis Gama-Peralta,

                 Defendant - Appellant




                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:17-CR-120-1


Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Appellant Luis Alberto Gama-Peralta pled guilty to conspiracy to
distribute and to possess with intent to distribute one kilogram or more of
cocaine. He argues that (1) the district court erred in imposing a two-level
leadership-role adjustment 1 and (2) his sentence was otherwise procedurally
or substantively unreasonable.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   U.S.S.G. § 3B1.1(c).
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                                              I.
       A district court’s application of the Sentencing Guidelines is reviewed de
novo and its factual findings are reviewed for clear error. 2 “Whether a
defendant exercised an aggravating role as an organizer, leader, manager, or
supervisor for purposes of an adjustment under U.S.S.G. § 3B1.1(c) is a finding
of fact reviewed for clear error.” 3 “A factual finding is not clearly erroneous if
it is plausible in light of the record as a whole.” 4 There is clear error where a
review of the record creates a “definite and firm conviction that a mistake has
been committed.” 5 A district court may base its factual findings on “any
information that has sufficient indicia of reliability to support its probable
accuracy,” 6 including, generally, a PSR. 7
       Guideline § 3B1.1(c) provides for a two-level increase if the defendant
was an organizer, leader, manager, or supervisor in criminal activity. A
defendant qualifies for the adjustment by exercising control over conspiracy
participants, but we have also recognized an alternative basis for the
adjustment where the defendant exercised responsibility over the conspiracy’s
property and activities. 8 Thus, in accordance with Delgado, “a § 3B1.1




       2   United States v. Ochoa-Gomez, 777 F.3d 278, 281 (5th Cir. 2015).
       3   Id.
         4 United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013).
         5 Id. (quoting United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011)).
         6 United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (internal quotation marks

omitted).
         7 United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012).
         8 United States v. Delgado, 672 F.3d 320, 344–45 (5th Cir. 2012) (en banc). Delgado

has been criticized by members of this Court for “conflat[ing] an ‘adjustment’ and an ‘upward
departure.’” Ochoa-Gomez, 777 F.3d at 284–85 (Prado & Elrod, JJ., concurring). But Delgado
is still binding. See id., 777 F.3d at 283 (applying Delgado); United States v. Alvarez, 761 F.
App’x 363, 364–65 (5th Cir. 2019) (unpublished) (same); United States v. Junius, 739 F.3d
193, 208–09 (5th Cir. 2013) (same).

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                                     No. 18-31039

adjustment may be based on either control over people or management of
assets.” 9
                                            II.
                                            A.
       Here, the district court’s apparent reasoning for imposing the § 3B1.1(c)
enhancement was error. The PSR recommended a four-level enhancement
under Guideline § 3B1.1(a) on the ground that Gama-Peralta was a leader or
organizer of a criminal activity that involved five or more participants or that
was otherwise extensive. The PSR made this recommendation based on its
contention that Gama-Peralta was responsible for other members of the
conspiracy, including Gama-Peralta’s brother and co-defendant, Manuel
Gama-Peralta, and his sister, Jazmin Gama-Peralta.
       At sentencing, the district court accepted in part Gama-Peralta’s
argument that the conspiracy was a “loose-knit familial group that had no
leader.” The court did not apply the four-level enhancement “because a number
of the co-conspirators were family members,” applying § 3B1.1(c)’s two-level
enhancement instead. 10 If the family members were not the participants over
whom Gama-Peralta had control such that he qualified for the enhancement,
the only remaining option identified by the PSR is a confidential source who
drove a car with a hidden compartment used for shipping cocaine. But this
confidential source cannot be a qualifying participant because the source would
not have been “criminally responsible for the commission of the offense[.]” 11




       9 Ochoa-Gomez, 777 F.3d at 283 (citing Delgado, 672 F.3d at 344–45).
       10 The Government had conceded that there was a “family dynamic” and that the case
involved a “family relationship rather than a purely leader/subordinate relationship.”
       11 See U.S.S.G. § 3B1.1, cmt. n.1; see also United States v. Saavedra-Moreno, 544 F.

App’x 251, 251 (5th Cir. 2013) (unpublished) (“The Government concedes that the
[confidential source] cannot be a participant for purposes of a § 3B1.1 enhancement.”).

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       Even assuming for argument that the district court did rely—as it
appears to have done—on the confidential source as the conspiracy participant
controlled by Gama-Peralta, we find no clear error because, on this record, it
is “plausible” that Gama-Peralta qualified for the enhancement by exercising
responsibility over the assets and activities of the drug conspiracy. As reflected
in the PSR, Gama-Peralta assisted the confidential source in registering a car
outfitted with a hidden compartment for transporting cocaine, directed the
source to drive the car to a hotel, and instructed the source to remain at the
hotel while Gama-Peralta and others left with the car. Gama-Peralta also
negotiated two drug sales when contacted by a confidential source. In
intercepted phone calls, Gama-Peralta and other co-conspirators “discuss[ed]
the quality, inspections, mixing, and weighing” of cocaine. Prior to a sale, he
“instructed [his sister] Jazmin to weigh the cocaine and advised Jazmin that
the unknown male would arrive at the location to retrieve the drugs from her.”
On another occasion, Gama-Peralta advised an undercover buyer of the
cocaine’s price and stated he “would instruct his brother, Manuel, . . . to deliver
the cocaine with the next shipment[.]” These acts render it plausible that
Gama-Peralta had control over the conspiracy’s assets, including the car with
a hidden compartment. 12 Thus, imposition of this enhancement, considered in
light of the complete record, was not clear error.




       12 His role parallels those of Ochoa-Gomez and Alvarez. See Ochoa-Gomez, 777 F.3d
at 284 (“[Ochoa-Gomez] assisted in negotiations, contributed eight kilograms of jointly-owned
crystal methamphetamine, stored and packaged the drugs, delivered them to the undercover
officer, and indicated a willingness to supply more drugs in the future.”); Alvarez, 761 F.
App’x at 365 (“The significance of Alvarez’s role is evidenced by his repeated attempts to
reach the undercover agent after his co-defendants were arrested, his threat that someone
would pay as a result of the lost drugs, and his indication that he had to go to Mexico to
explain the loss of the load to unidentified coconspirators.”).

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                                           B.
       Finally, we reject Gama-Peralta’s additional arguments that his
sentence was unreasonable. This Court, in reviewing sentencing decisions for
reasonableness, first reviews for significant procedural error and then
considers the substantive reasonableness. 13 Gama-Peralta did not object to
procedural or substantive reasonableness at sentencing, so plain-error review
applies. 14
       As to procedure, he argues the district court relied on a clearly erroneous
fact at sentencing—that Gama-Peralta brought drugs into the United States
from another country. 15 The court stated that Gama-Peralta “brought in . . . a
minimum of 150 kilograms of cocaine into our community and the various
communities in this country.” But the most plausible interpretation of the
court’s statements, in context, is that the court believed Gama-Peralta brought
drugs into the court’s jurisdiction from other locations in the United States.
       As to substance, Gama-Peralta’s within-Guidelines sentence is entitled
to a presumption of reasonableness. 16 A defendant rebuts this presumption by
“showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” 17 Gama-Peralta does not rebut this presumption with his arguments
that the court should have accounted for the disparity between his sentence
and his brother Manuel’s shorter sentence and that the court placed improper
weight on factors like Gama-Peralta’s nationality and the drug quantities


       13  United States v. Nguyen, 854 F.3d 276, 280 (5th Cir. 2017).
       14  See United States v. Neba, 901 F.3d 260, 262 (5th Cir. 2018).
        15 See Nguyen, 854 F.3d at 280 (noting, in a list of potential procedural errors,

“selecting a sentence based on clearly erroneous facts”).
        16 United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
        17 Id.



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attributed to the two brothers. The record reflects that the district court
considered and rejected Gama-Peralta’s arguments, and he does not show
error, much less plain error, in this within-Guidelines sentence.
                                      III.
      We affirm the sentence of the district court.




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