Case: 11-40382 Document: 00511673751 Page: 1 Date Filed: 11/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 22, 2011
No. 11-40382
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GUILLERMO HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:09-CR-192-7
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Guillermo Hernandez was convicted of conspiring to
manufacture or distribute, or to possess with intent to manufacture or
distribute, 50 grams or more of methamphetamine or 500 grams or more of a
mixture containing a detectable amount of methamphetamine. He was
sentenced to 324 months of imprisonment and five years of supervised release.
On appeal, he contends that the district court erred by refusing to reduce his
offense level for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-40382 Document: 00511673751 Page: 2 Date Filed: 11/22/2011
No. 11-40382
by increasing his offense level for his role as a manager or supervisor, pursuant
to U.S.S.G. § 3B1.1(b).
Sentences are reviewed for procedural error and substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). The district court
commits a significant procedural error by improperly calculating the guidelines
range. Id.
A defendant may receive a two-level reduction in offense level if he “clearly
demonstrates acceptance of responsibility for his offense.” § 3E1.1(a). We “will
affirm a sentencing court’s decision not to award a reduction . . . unless it is
without foundation, a standard of review more deferential than the clearly
erroneous standard.” United States v. Juarez-Duarte, 513 F .3d 204, 211 (5th
Cir. 2008) (internal quotation marks and citation omitted).
Even if Hernandez did not affirmatively and falsely deny any relevant
conduct, he significantly minimized his role and conduct in the offense and
attempted to have a codefendant falsely exculpate him. The district court’s
refusal to award the reduction based on its finding that Hernandez had not
demonstrated acceptance of responsibility was not without foundation. Cf. §
3E1.1(a) cmt. n.1(A), n.3; see United States v. Cabrera, 288 F.3d 163, 177 (5th
Cir. 2002).
A defendant may receive a three-level increase in offense level if he was
“a manager or supervisor (but not an organizer or leader).” § 3B1.1(b). A district
court’s determination that a defendant was a manager or supervisor is reviewed
for clear error. United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006).
Even if Hernandez’s primary role was not as a supervisor of other
participants, the record indicates that he exercised managerial responsibility
over the drugs and drug proceeds. See § 3B1.1 cmt. n.2. The district court’s
finding that Hernandez was a manager or supervisor was not clearly erroneous.
2
Case: 11-40382 Document: 00511673751 Page: 3 Date Filed: 11/22/2011
No. 11-40382
See Rose, 449 F.3d at 633-34; United States v. Lopez-Urbina, 434 F.3d 750, 767
(5th Cir. 2005).
The judgment of the district court is AFFIRMED.
3