     Case: 09-41124     Document: 00511236833          Page: 1    Date Filed: 09/17/2010




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

                                                 FILED
                                                                        September 17, 2010
                                     No. 09-41124
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JESUS FABIEL MENDOZA, also known as Primo,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                            USDC No. 7:08-CR-1168-14


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Jesus Fabiel Mendoza appeals the 120-month sentence imposed following
his guilty plea conviction for conspiracy with intent to distribute more than
five kilograms of cocaine and 1,000 kilograms or more of marijuana, and
conspiracy to launder monetary instruments. Finding no error, we affirm.
        The district court calculated Mendoza’s total offense level at 37, which
included a two-level enhancement pursuant to U.S. S ENTENCING G UIDELINES



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41124    Document: 00511236833 Page: 2       Date Filed: 09/17/2010
                                 No. 09-41124

M ANUAL § 3B1.1 (2008) based on Mendoza’s role as a leader or organizer in the
offense. The resulting guidelines range was 210 to 262 months.
      Mendoza argues that the district court erred by relying on insufficient and
unreliable evidence in assessing the two-level § 3B1.1 enhancement.           The
determination that a defendant is a leader or organizer is ordinarily a factual
finding reviewed by this court for clear error. United States v. Cabrera, 288 F.3d
163, 173 (5th Cir. 2002). The Government argues, however, that Mendoza failed
to preserve his objection to the two-level enhancement, and thus, review is for
plain error. The Government also argues that any error was harmless in light
of the imposition of the mandatory minimum sentence.
      With respect to Mendoza’s contention that he did not exercise sufficient
control to warrant the enhancement, there was no error, regardless of the
standard of review. The facts in the presentence report and Mendoza’s own
concessions provide evidence that Mendoza utilized a driver to deliver
substantial amounts of narcotics and split the profits with him. There was thus
no error in the district court’s conclusion that Mendoza was the leader or
organizer of at least one other person. See United States v. Giraldo, 111 F.3d 21,
24 (5th Cir. 1997) (discussing enhancement based on status as organizer of other
criminal participants). To the extent that Mendoza contends that there was no
evidence of the driver’s criminal liability, Mendoza failed to raise this specific
argument in the district court, and we review for plain error. Because this is a
factual question that could have been resolved upon objection, there can be no
plain error.   See United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991)
(“Questions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.”). Even if he had
preserved the issue, however, there was sufficient evidence supporting an
inference of criminal knowledge, including the splitting of profits and
transportation of large quantities of drugs.



                                        2
  Case: 09-41124    Document: 00511236833 Page: 3      Date Filed: 09/17/2010
                                No. 09-41124

      In light of the foregoing, there was no error, plain or otherwise, in the
imposition of the enhancement. Even if the district court had erred, any error
would be harmless given that the court sentenced Mendoza to the mandatory
minimum of 120 months, which was less than the guidelines range of 135 to 168
months that Mendoza contends applied without the enhancement. For the
foregoing reasons, the judgment of the district court is AFFIRMED.




                                      3
