United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 30, 2004
Charles R. Fulbruge III
Clerk
No. 04-50474
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERMIN MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:03-CR-1961-1-DB
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Fermin Mendez appeals the 65-month concurrent sentences
imposed by the district court after his guilty-plea convictions
for conspiracy to import marijuana; importation of marijuana;
conspiracy to possess with intent to distribute marijuana; and
possession with intent to distribute marijuana. See 21 U.S.C.
§§ 841, 846, 952, 960, 963. Mendez argues that the district
court erred in applying a U.S.S.G. § 3B1.1(c) enhancement to his
sentence based upon his management of a person who was not 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this opinion should not be published and is not precedent except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.
No.04-50474
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knowing participant in the offense. He also argues for the first
time on appeal that his sentence violates Blakely v. Washington,
124 S. Ct. 2531 (2004). He concedes that his Blakely argument is
foreclosed by United States v. Pineiro, 377 F.3d 464, 473 (5th
Cir. 2004), petition for cert. filed (U.S. July 14, 2004)
(No. 04-5263), but states that he is raising it to preserve it
for possible Supreme Court review
The Sentencing Guidelines provide for a two-level upward
adjustment to a defendant’s offense level if he is a manager of
criminal activity involving fewer than five participants or the
offense is not otherwise extensive. See U.S.S.G. § 3B1.1(c).
The commentary to U.S.S.G. § 3B1.1 provides that a “‘participant’
is a person who is criminally responsible for the commission of
the offense, but need not have been convicted.” U.S.S.G. § 3B1.1
comment. (n.1). The commentary further provides that to qualify
for an adjustment under U.S.S.G. § 3B1.1, the defendant must have
been the manager of one or more participants. Id. at comment.
(n.2.); see also United States v. Gross, 26 F.3d 552, 555 (5th
Cir. 1994). We review the district court’s interpretation and
application of U.S.S.G. § 3B1.1 de novo and its underlying
factual findings for clear error. Pineiro, 377 F.3d at 474.
Mendez and Erin Kay Montoya were charged with the above-
noted counts. While Mendez pleaded guilty to the counts, Montoya
asserted that she had been duped by Mendez into bringing
marijuana from Mexico into the United States, and she pleaded
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guilty to misprision of a felony. The presentence report (“PSR”)
recounted Montoya’s version of the events and recommended
enhancing Mendez’s base offense level under U.S.S.G. § 3B1.1(c)
because Mendez was the manager of the criminal activity. Mendez
objected to the U.S.S.G. § 3B1.1 enhancement in part because
Montoya denied having any knowing involvement in the criminal
activity.
Pursuant to Federal Rule of Criminal Procedure 32(i)(3)(B),
the court must rule on any disputed portion of the PSR or other
controverted matter or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or because
the court will not consider the matter in sentencing. We cannot
discern any express or implicit resolution by the district court
of the issue whether Montoya was a “participant” in the criminal
activity within the meaning of U.S.S.G. § 3B1.1. In addition,
the PSR does not indicate that Montoya was criminally responsible
for the offenses to which Mendez pleaded guilty. Accordingly, we
VACATE Mendez’s sentences and REMAND to the district court for a
resolution of this disputed issue. See United States v. Maloof,
205 F.3d 819, 823-24 (5th Cir. 2000); United States v. Pofahl,
990 F.2d 1456, 1486 (5th Cir. 1993).
AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR
RESENTENCING.