     Case: 10-10517     Document: 00511566500         Page: 1     Date Filed: 08/09/2011




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

                                                                            FILED
                                                                           August 9, 2011

                                       No. 10-10517                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

JOSE ANTONIO VERA,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:09-CR-61-1


Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jose Vera and his wife pled guilty to aiding and abetting each other in the
possession of heroin with the intent to distribute. The district court applied a
two-level Sentencing Guidelines enhancement for Mr. Vera’s aggravating role
and sentenced him to 145 months of imprisonment. Mr. Vera argues that use
of the enhancement was clear error because the evidence does not establish that
he recruited his wife into the criminal activity. We AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-10517

                           STATEMENT OF FACTS
      On July 14, 2009, Jose Vera was pulled over by a state trooper for speeding
on Interstate 40 in Carson County, Texas. Mr. Vera was driving a rental vehicle
with his wife, Jenny Vera, and their five-year-old son. After noticing that the
child was not wearing a seatbelt, the trooper asked Mr. Vera to stand outside the
vehicle.   The trooper then privately questioned Mrs. Vera about their
destination. She responded that they were traveling to Oklahoma City to visit
a friend named Rosa. Mrs. Vera could not recall their friend’s last name or the
name of the hotel in which they planned to stay. The trooper posed the same
question to Mr. Vera once he reentered the vehicle. Mr. Vera said that they were
traveling to Oklahoma City to visit and stay with their friend, Manuel Gonzales.
      Based on these inconsistencies, the trooper requested and received consent
to search the vehicle. The search yielded 8.04 kilograms of heroin. Mr. and Mrs.
Vera were arrested, provided their Miranda rights, and transported for
questioning.
      During his interview, Mr. Vera admitted that he had recently traveled to
Mexico to establish a “connection” to transport drugs for money. Two days
before his arrest, Mr. Vera spoke on the telephone with a drug dealer he had met
during that trip. Mr. Vera was offered $10,000 to pick up a shipment of
narcotics in Moreno Valley, California and transport it to Chicago, Illinois. The
following day, Mr. Vera rented a vehicle in San Luis, Arizona and drove with his
family to Moreno Valley.       After placing a telephone call and receiving
instructions, Mr. Vera drove to a residential part of town and retrieved a bag of
drugs from an unknown Hispanic man. According to Mr. Vera, this was the first
time he had transported drugs and his wife was aware of what they were doing.


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                                  No. 10-10517

      Mrs. Vera corroborated most of Mr. Vera’s version of events, including her
knowledge of the transaction. She also stated that Mr. Vera had transported
illegal narcotics on three prior occasions.
      An indictment charged Mr. and Mrs. Vera with aiding and abetting each
other in the possession of heroin with the intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), and 18 U.S.C. § 2. After pleading guilty, Mrs.
Vera was sentenced to 120 months of imprisonment. Mr. Vera also pled guilty.
Because of his aggravating role in the offense, the presentence report (“PSR”)
applied a two-level sentencing enhancement. See U.S. Sentencing Guidelines
Manual § 3B1.1(c). Mr. Vera objected to use of the enhancement, arguing, in
relevant part, that there was no proof he “was an organizer, leader, manager, or
supervisor” of the offense and that the evidence did not establish that he
recruited his wife into the criminal activity. See id. The probation officer
rejected Mr. Vera’s objection, noting that Mr. Vera “had control” over his wife
and had “recruit[ed her] to travel with him . . . .”
      At the sentencing hearing, Mr. Vera introduced no evidence and did not
challenge the PSR’s recitation of the facts. He did, however, maintain his
objection that the facts did not allow for application of Section 3B1.1(c). The
district court adopted the PSR, including the aggravating role enhancement, and
sentenced Mr. Vera to 145 months of imprisonment. A timely appeal followed.
                                  DISCUSSION
      We review for clear error a district court’s decision to apply Section
3B1.1(c) of the Sentencing Guidelines. United States v. Rose, 449 F.3d 627, 633
(5th Cir. 2006). A “defendant must prove that the district court’s fact-finding
was clearly erroneous, which may include showing the material untruth of the


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                                  No. 10-10517

PSR information relied upon by the district court.” United States v. Caldwell,
448 F.3d 287, 290 (5th Cir. 2006) (citations omitted). In deciding whether to
apply the enhancement, “a district court is permitted to draw reasonable
inferences from the facts, and these inferences are fact-findings reviewed for
clear error as well.” Id. We will affirm application of the enhancement if it was
“plausible in light of the record as a whole.” Id.
      Section 3B1.1(c) provides a two-level increase to a defendant’s Guidelines
offense level “[i]f the defendant was an organizer, leader, manager, or supervisor
in any criminal activity” with fewer than five and more than one participant.
U.S. Sentencing Guidelines Manual § 3B1.1(c). The enhancement “requires that
a defendant be the organizer o[r] leader of at least one other participant in the
crime and that he assert control or influence over at least that one participant.”
United States v. Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996).
      In this case, the district court did not state its reasons for applying Section
3B1.1(c). Instead it adopted the PSR, which concluded that Mr. Vera “recruited
or directed his wife to travel with him.” An addendum to the PSR stated that
Mr. Vera “was a leader and supervisor of the criminal activity. [His wife] did not
participate in planning or facilitating the offense. . . . [She] was a mere
passenger in the vehicle.”
      Mr. Vera urges us to disregard the PSR’s statements as conclusory and
find that the facts do not support application of the enhancement. “Bald,
conclusionary statements do not acquire the patina of reliability by mere
inclusion in the PSR.” United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir.
1993). The uncontested facts, though, support a reasonable inference that Mr.
Vera recruited, directed, and led his wife throughout the entirety of the crime.


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                                 No. 10-10517

Specifically, Mrs. Vera admitted that Mr. Vera had previously been involved in
three drug transactions.    Also, Mr. Vera, not his wife, commanded this
transaction, first by traveling to Mexico to initiate a relationship with a drug
dealer, and then by communicating with various individuals to coordinate the
pick-up and delivery of drugs. Mr. Vera, with his family in tow, then proceeded
to rent a vehicle and drive from Arizona to California, where he retrieved the
drugs and began driving toward the agreed upon drop-off location.
      Application of the enhancement was “plausible in light of the record as a
whole.” Caldwell, 448 F.3d at 290. The district court did not clearly err.
      AFFIRMED.




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