IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10528
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVARO HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:97-CR-143-1-Y
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February 11, 1999
Before BARKSDALE and EMILIO M. GARZA, Circuit Judges.*
PER CURIAM:**
Alvaro Hernandez (Hernandez) appeals his conviction and
sentence pursuant to a guilty plea for possession with intent to
distribute of more than five kilograms of cocaine. 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A)(ii)(II). On appeal, Hernandez argues
that the district court improperly double counted when adjusting
his sentence level upward by four levels for being an organizer
or leader of a criminal activity involving five or more
*
This matter is being decided by a quorum. 28 U.S.C. §
46(d).
**
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that this opinion should not be published and is not precedent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.
participants under U.S.S.G. § 3B1.1(a). Hernandez does not
dispute the underlying facts of this case, nor does he claim that
he was not an organizer or leader as defined by the sentencing
guidelines. He only asserts that the application of § 3B1.1(a)
violates the Fifth Amendment’s Double Jeopardy Clause.
The district court’s application and interpretation of the
sentencing guidelines are matters of law subject to de novo
review. United States v. Montoya-Ortiz, 7 F.3d 1171, 1179 (5th
Cir. 1993). In the present case, Hernandez did not raise this
issue before the district court and it is reviewed for plain
error. United States v. Calverley, 37 F.3d 160, 162 (5th Cir.
1994)(en banc).
A four-level upward adjustment for being an organizer or
leader does not constitute impermissible double counting. United
States v. Godfrey, 25 F.3d 263, 264 (5th Cir. 1994). Double
counting under the sentencing guidelines does not violate the
Double Jeopardy Clause, and is permitted unless the guideline in
question specifically prohibits double counting. Witte v. United
States, 515 U.S. 389, 402-03 (1995); United States v. Jones, 145
F.3d 736, 736-37 (5th Cir. 1998); United States v. Gonzalez, 996
F.2d 88, 93 (5th Cir. 1993). Accordingly, the sentence assessed
by the district court should be affirmed.
AFFIRMED.