United States v. Zertuche

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 24, 2007

Charles R. Fulbruge III
Clerk
No. 06-40813
Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE LUIS ZERTUCHE

Defendant - Appellant

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-963-1
--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Jose Luis Zertuche appeals the sentence imposed following

his guilty-plea conviction for possession with intent to

distribute more than 500 grams of cocaine.

Zertuche first argues that the district court erred by

imposing a four-level guidelines enhancement based on the finding

that he was an organizer or leader of the offense. See U.S.S.G.

§ 3B1.1(a) (2005). Although some evidence suggested that another

co-defendant was the leader or organizer, in light of the

evidence as a whole, we conclude that the district court did not

*
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this opinion should not be published and is not precedent except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. 06-40813
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clearly err in finding that Zertuche was a leader or organizer.

See United States v. Villanueva, 408 F.3d 193, 204 (5th Cir.

2005). Assuming arguendo that the evidence supported a finding

that Zertuche’s co-defendant warranted an enhancement as a leader

or organizer, we note that such a finding would not preclude a

finding that Zertuche also was a leader or organizer. See

§ 3B1.1 comment. (n. 4).

Zertuche argues that the district court erred by imposing a

two-level enhancement for possession of a firearm in connection

with the offense. See § 2D1.1(b)(1). Again, although there is

some contrary evidence, in light of the evidence that the firearm

was found in Zertuche’s closet along with a quantity of cocaine,

we conclude that the district court did not clearly err in

imposing this enhancement. See United States v. Eastland,

989 F.2d 760, 770 (5th Cir. 1993).

Zertuche argues that the district court erred by imposing a

two-level enhancement for use of a minor to assist in avoiding

detection of the offense. See § 3B1.4. In light of the

undisputed evidence that a co-defendant was to smuggle a quantity

of cocaine hidden in an infant carrier seat and that the co-

defendant’s infant child was brought to the bus station, we

conclude that the district court did not clearly err in finding

that this enhancement was warranted.

Finally, Zertuche argues that the district court erred by

denying him the benefits of § 5C1.2, which provides for an

exception to certain mandatory minimum sentences and a two-level
 No. 06-40813
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reduction in offense level. See § 5C1.2; § 2B1.1(b)(7) (2005).

Zertuche’s argument is premised on the assumption that the

district court erred in finding that he was an organizer or

leader. Because we find that the district court did not clearly

err in finding that Zertuche was an organizer or leader, the

district court did not clearly err in finding Zertuche ineligible

for relief under § 5C1.2. See United States v. Miller, 179 F.3d

961, 963-64 (5th Cir. 1999).

AFFIRMED.