IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40979
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
FERNANDO TREVINO-RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the
Southern District of Texas
(M-95-CR-228-1)
August 1, 1997
Before JOHNSON, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Fernando Trevino-Rodriguez appeals his sentence following his
convictions for conspiracy to possess with the intent to distribute
and possession with the intent to distribute more than 50 kilograms
of marijuana. He argues that the district court erred in assessing
a two-level enhancement pursuant to United States Sentencing
Guidelines section 3B1.1(c). Specifically, Trevino-Rodriguez claims
that the district court improperly determined that he played a
*
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this opinion should not be published and is not precedent except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.
leadership role in the offense.
A district court’s finding that a defendant is a leader
pursuant to United States Sentencing Guidelines section 3B1.1 is a
fact finding that is reviewed for clear error. See United States
v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995). After thoroughly
reviewing the record in the present case, we determine that
insufficient evidence exists indicating that Trevino-Rodriguez was
a “leader” for purposes of enhancement under section 3B1.1(c). See
United States v. Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996),
petition for cert. filed, (U.S. June 25, 1997); United States v.
Ronning, 47 F.3d 710, 711-13 (5th Cir. 1995). Therefore, the
sentence imposed by the district court was clearly erroneous and is
VACATED. The case is REMANDED1 to the district court for
resentencing.
VACATED AND REMANDED.
1
The sentencing range for Trevino-Rodriguez without the
section 3B1.1 enhancement is 57 to 71 months. While the present
sentence of 70 months falls within this range, it was the lowest
possible term in the range (70-87 months) for the base offense
level of 26 applied at the district court level. This indicates
the district court’s intent to impose the least harsh sentence
available. Furthermore, the record is devoid of evidence that the
district court would have imposed the same sentence absent the
error. See United States v. Williams, 503 U.S. 193, 203-04 (1992).
Thus, we will remand the case for resentencing rather than affirm
for harmless error. See, e.g., United States v. Tello, 9 F.3d
1119, 1130-31 (5th Cir. 1993).
2