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United States v. Lucio, 06-40110 (2006)

Court: Court of Appeals for the Fifth Circuit Number: 06-40110 Visitors: 15
Filed: Nov. 15, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 15, 2006 Charles R. Fulbruge III Clerk No. 06-40110 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE JESUS LUCIO, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-730-2 - Before DeMOSS, STEWART, and PRADO, Circuit Judges PER CURIAM:* Jose Jesus Lucio challenges his 135-month sen
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 15, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-40110
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE JESUS LUCIO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:04-CR-730-2
                      --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges

PER CURIAM:*

     Jose Jesus Lucio challenges his 135-month sentence for

possession of more than five kilograms of cocaine with the intent

to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)

and 18 U.S.C. § 2.   First he asserts that the district court

clearly erred in finding that he was a leader or organizer of the

drug trafficking offense.   According to the Presentence

Investigation Report, Lucio recruited his co-defendant to

participate in the drug trafficking scheme; Lucio was closer to

the supplier than his co-defendant; Lucio arranged for the

     *
       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. 06-40110
                                -2-

transportation of the drugs, while the co-defendant merely

supplied interim storage space and assisted Lucio in the delivery

of the narcotics; and Lucio had more to gain financially than his

co-defendant.   The probation officer obtained this information

from the investigative reports submitted by the Immigration and

Customs Enforcement Office.   In addition, Special Agent Hover

confirmed during the sentencing hearing that the supplier did not

have contact with the co-defendant and that Lucio was in charge

of both transporting the narcotics and storing them at the co-

defendant’s house.

     The only rebuttal evidence offered by Lucio was his

testimony that both he and his co-defendant received telephone

calls from the supplier.   Because Lucio’s status as a leader or

organizer of the offense is plausible in light of the record as a

whole, we find no clear error.   See U.S.S.G. § 3B1.1(c), cmt. 4;

United States v. Miranda, 
248 F.3d 434
, 446 (5th Cir. 2001).

     Next Lucio asserts that there was an insufficient nexus

between the drug trafficking activity and the presence of an

unloaded handgun in his co-defendant’s kitchen at the time of his

arrest to justify a firearm enhancement.   However, he fails to

brief this issue adequately for the court’s consideration.

Although he asserts that there was no indication that the firearm

was used or possessed during the drug trafficking activity, he

fails to cite any authority for his argument that the enhancement

was improper.   An argument that is not supported with citation to
                          No. 06-40110
                               -3-

authority is deemed abandoned.   See Yohey v. Collins, 
985 F.2d 222
, 224-25 (5th Cir. 1993).

     The judgment of the district court is AFFIRMED.

Source:  CourtListener

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