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United States v. Restrepo, 95-10128 (1996)

Court: Court of Appeals for the Fifth Circuit Number: 95-10128 Visitors: 32
Filed: May 31, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-10127 No. 95-10128 No. 95-10129 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN GILBERTO GIRALDO, Defendant-Appellant. ******************************************************* UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARGARITA ELENA RESTREPO, Defendant-Appellant. ******************************************************* UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE ANIBAL VIDAL,
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              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                         __________________

                            No. 95-10127
                            No. 95-10128
                            No. 95-10129
                          Summary Calendar
                         __________________


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus


JUAN GILBERTO GIRALDO,

                                      Defendant-Appellant.

     *******************************************************

UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

versus


MARGARITA ELENA RESTREPO,

                                       Defendant-Appellant.

     *******************************************************

UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

versus

JOSE ANIBAL VIDAL,

                                       Defendant-Appellant.


                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:94-CR-043-R
                       - - - - - - - - - -
                             No. 95-10127
                             No. 95-10128
                             No. 95-10129
                                  -2-

                             May 21, 1996

Before WIENER, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

     In these consolidated appeals, Juan Giraldo, Margarita

Restrepo, and Jose Vidal appeal their sentences for conspiracy to

distribute cocaine.    Giraldo and Vidal contend that the district

court erred by attributing to them more than 142 kilograms of

cocaine.    Giraldo, Vidal, and Restrepo contend that the district

court erred by denying them downward adjustments for their roles

in the offense; erred by upwardly adjusting their offense levels

for possession of a firearm; and erred by denying them downward

departures based on their deportable-alien status.    We have

reviewed the records and the briefs of the parties and we find no

reversible error.

     First, the attribution of 440 kilograms of cocaine to

Giraldo and the attribution of 646 kilograms of cocaine to Vidal

was not clearly erroneous.    See United States v. Maseratti, 
1 F.3d 330
, 340 (5th Cir. 1993), cert. denied, 
114 S. Ct. 1096
, and

cert. denied, 
114 S. Ct. 1552
, and cert. denied, 
115 S. Ct. 282
(1994).    Second, Giraldo's, Restrepo's, and Vidal's sentences

were based on amounts of cocaine closely linked to their

participation in the conspiracy.    The district court's denial of

     *
        Pursuant to Local Rule 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 Local Rule
47.5.4.
                           No. 95-10127
                           No. 95-10128
                           No. 95-10129
                                -3-

an adjustment for a mitigating role in the offense was not

clearly erroneous.   See United States v. Atanda, 
60 F.3d 196
, 199

(5th Cir. 1995); United States v. Zuniga, 
18 F.3d 1254
, 1261 (5th

Cir. 1994).   Third, the district court's finding that Giraldo,

Restrepo, and Vidal possessed a gun in connection with their drug

offense was not clearly erroneous.   See United States v.

Mitchell, 
31 F.3d 271
, 278 (5th Cir.), cert. denied, 
115 S. Ct. 455
, and cert. denied, 
115 S. Ct. 649
(1994), and cert. denied,

115 S. Ct. 770
, and cert. denied, 
115 S. Ct. 953
(1995).

Finally, we lack jurisdiction to consider the appellants'

contention that the district court should have granted them

downward departures based on their alien statuses, United States

v. DiMarco, 
46 F.3d 476
, 478 (5th Cir. 1995); we therefore

dismiss their downward-departure claim.     
Id. AFFIRMED IN
PART; DISMISSED IN PART.

Source:  CourtListener

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