     Case: 10-41255     Document: 00511764547         Page: 1     Date Filed: 02/22/2012




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

                                                                            FILED
                                                                         February 22, 2012
                                     No. 10-41255
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

IRINEO DE LA GARZA, also known as Nene,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:10-CR-499-2


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Irineo De La Garza appeals his sentence following his guilty plea
conviction for conspiracy to possess with the intent to distribute cocaine base.
For the first time on appeal, De La Garza argues that the district court plainly
erred in assessing him a three-level increase in his base offense level under
U.S.S.G. § 3B1.1(b). He argues that the presentence report’s characterization
of him as a manager or supervisor was entirely conclusional and devoid of fact.
He further argues that his conduct was commensurate with the other

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41255

conspirators, and that there is no indication that any of the conspirators were
working for him.
      Under the plain error standard, De La Garza must show “(1) error (2) that
is plain and (3) that affects his substantial rights.” See United States v. Castillo-
Estevez, 597 F.3d 238, 240 (5th Cir.), cert. denied, 131 S. Ct. 457 (2010). “To be
plain, legal error must be clear or obvious, rather than subject to reasonable
dispute.” Id. at 241 (internal quotation marks and citation omitted). This court
will exercise its discretion to correct plain error if it seriously affected the
fairness, integrity, or public reputation of the judicial proceeding. Id. at 240.
      Under § 3B1.1(b), the defendant’s offense level is increased by three levels
if 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....” § 3B1.1(b) (2009). “The commentary to Section 3B1.1(b) provides
that even if a defendant was not a manger or supervisor, the enhancement may
be warranted if the defendant ‘exercised management responsibility over the
property, assets, or activities or a criminal organization.’” United States v. Rose,
449 F.3d 627, 633 (5th Cir. 2006) (quoting § 3B1.1(b), cmt.n.2). “A defendant’s
role in the criminal activity for the purpose of applying guideline section 3B1.1
may be deduced inferentially from available facts.” United States v. Ayala, 47
F.3d 688, 690 (5th Cir. 1995).
      The presentence report contained a lengthy description of the offense
conduct which closely followed the factual basis admitted by De La Garza. The
report recounted the observations of law enforcement agents as well as the
information obtained from the conspirators following their arrest. Included was
the fact that De La Garza admitted that he rented the residence for the prior
year and that a co-conspirator told agents that he had retrieved marijuana from
the residence on 15 prior occasions. Based on this information, the district court
could infer that De La Garza exercised managerial responsibility over a
stash house used by the conspiracy. See § 3B1.1, cmt. n.2; see also United States

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                                 No. 10-41255

v. Thomas, 932 F.2d 1085, 1092 (5th Cir. 1991) (noting that appellant’s
procurement of apartments in which drug proceeds and undistributed drugs
were stored supported the district court’s finding of an enhanced role).
Accordingly, De La Garza has failed to show that the district court plainly erred
in assessing him a managerial role enhancement under § 3B1.1(b).
      AFFIRMED.




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