     Case: 12-41118       Document: 00512376823         Page: 1     Date Filed: 09/17/2013




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

                                                                            FILED
                                                                        September 17, 2013
                                     No. 12-41118
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANTONIO MENDOZA-AGUIRRE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-75-2


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Antonio Mendoza-Aguirre (Mendoza) appeals his sentence following his
guilty plea conviction for possession with intent to distribute 1,000 kilograms or
more of marijuana.         He challenges the district court’s assessment of two
enhancements under the Sentencing Guidelines. He contends that the district
court erred in finding under U.S.S.G. § 3B1.1(b) that he was a supervisor in
criminal activity that involved five or more participants and that the district



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-41118

court erred in finding under § 2D1.1(b)(12) that he maintained a premises for the
purpose of distributing a controlled substance.
      We review the district court’s factual findings at sentencing for clear error.
See United States v. Nava, 624 F.3d 226, 229 (5th Cir. 2010). “A factual finding
is not clearly erroneous if it is plausible in light of the record read as a whole.”
Id. (internal quotation marks and citation omitted). Section 3B1.1(b) provides
for a three-level enhancement “[i]f the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal activity involved five or more
participants or was otherwise extensive.” Section 2D1.1(b)(12) provides for a
two-level enhancement if the defendant maintained a premises for the purpose
of manufacturing or distributing a controlled substance, including storage of a
controlled substance for the purpose of distribution. § 2D1.1(b)(12); § 2D1.1,
comment. (n.28). The premises need not be used exclusively for manufacturing
or distribution of controlled substances, but such drug activity must be a
primary or principal purpose of the premises. § 2D1.1, comment. (n.28).
      Regarding the § 3B1.1(b) enhancement, Mendoza contends that the district
court erroneously attributed to him responsibility over a codefendant’s residence
and money retrieved from that residence. He asserts that he was merely an
underling to that codefendant, who was the actual manager or supervisor in the
marijuana operation. With respect to the § 2D1.1(b)(12) enhancement, Mendoza
does not dispute that over 1,000 kilograms of marijuana had been packaged at
his own home but contends that there was no evidence of how frequently his
home was used for the marijuana operation and how frequently it was used as
a lawful residence.
      The evidence indicated that Mendoza paid rent and lived at a residence
where over 1,000 kilograms of marijuana had been packaged by at least five
workers, Mendoza was partly responsible for hiring at least two of those
workers, materials used to package the marijuana were found throughout
Mendoza’s residence, Mendoza’s residence was one of the stash houses to which

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                                  No. 12-41118

marijuana loads were transported, and the marijuana packaging operation had
been significant enough to produce sizable earnings. Based on the record as a
whole, the district court did not clearly err in finding that Mendoza was a
supervisor in criminal activity involving five or more participants and that he
maintained a premises for the purpose of distributing a controlled substance.
See § 3B1.1(b); § 2D1.1(b)(12).
      AFFIRMED.




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