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United States v. Villagra-Montalvan, 01-20389 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 01-20389 Visitors: 25
Filed: Jun. 24, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-20389 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCISCO JOSE VILLAGRA-MONTALVAN, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-683-1 - June 19, 2002 Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Francisco Jose Villagra-Montalvan (“Villagra”) challenges his sentence following his guilty-plea co
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-20389
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

FRANCISCO JOSE VILLAGRA-MONTALVAN,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-00-CR-683-1
                      --------------------
                          June 19, 2002

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Francisco Jose Villagra-Montalvan (“Villagra”) challenges

his sentence following his guilty-plea conviction for possession

with intent to distribute one kilogram or more of heroin and

importation of that amount of heroin, in violation of 21 U.S.C.

§§ 841(a)(1), 952(a), 960(b)(1)(A).

     Villagra argues that the district court erred by not

considering his uncorroborated statements made during the safety-


     *
        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that this opinion should not be published and is not precedent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. 01-20389
                                 -2-

valve debriefing in determining whether Villagra played a minor

or minimal role in the offense.   Because Villagra did not raise

this argument at sentencing, we review it under the plain-error

standard.   See United States v. Calverley, 
37 F.3d 160
, 162-64

(5th Cir. 1994)(en banc).

     Even if the court should have considered Villagra’s

uncorroborated debriefing statements in determining the role-in-

the-offense reduction, Villagra did not offer these statements as

evidence either at sentencing or through his objections to the

presentence report, nor did Villagra offer any testimony about

his role in the offense.    Because the debriefing statements were

not offered as evidence of Villagra’s role in the offense, the

district court did not err in not considering them.

     Villagra does not argue that, based on the evidence that was

presented, the district court’s finding that he was not a minor

or minimal participant was clearly erroneous.   By not briefing

this issue, Villagra has waived it.    See Brinkmann v. Dallas

County Deputy Sheriff Abner, 
813 F.2d 744
, 748 (5th Cir. 1987).

     AFFIRMED.

Source:  CourtListener

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