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United States v. Perez, 98-51069 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 98-51069 Visitors: 38
Filed: Jun. 16, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-51069 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALMA ROSA PEREZ, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. P-98-CR-101-2 - - - - - - - - - - June 16, 1999 Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges. PER CURIAM:* Alma Rosa Perez appeals her sentence in a guilty-plea conviction for possession with
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                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 98-51069
                         Conference Calendar



UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

versus

ALMA ROSA PEREZ,

                                            Defendant-Appellant.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. P-98-CR-101-2
                        - - - - - - - - - -

                            June 16, 1999

Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

     Alma Rosa Perez appeals her sentence in a guilty-plea

conviction for possession with intent to distribute marijuana.

The district court found that Perez’ recruitment of Gilberto

Gonzales Juarez to assist her qualified her as a leader or

organizer under § 3B1.1 of the United States Sentencing

Guidelines.    Perez contends that she does not meet the definition

of a § 3B1.1 leader or organizer because Juarez was 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that this opinion should not be published and is not precedent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. 98-51069
                                 -2-

criminally responsible and because she did not exercise control

or authority over Juarez.

     The determination that a defendant is a § 3B1.1 “leader or

organizer” is a factual finding to be reviewed for clear error.

United States v. Ronning, 
47 F.3d 710
, 711 (5th Cir. 1995).     The

district court adopted the findings of the presentence report

(PSR) in full.   Although the district court did not make an

express finding that Juarez was criminally responsible and,

therefore, a participant under § 3B1.1, such a finding is

implicit in the judgment and is supported by both the PSR and the

sworn criminal complaint.    See United States v. Sherbak, 
950 F.2d 1095
, 1099-1101 (5th Cir. 1992); United States v. Alfaro, 
919 F.2d 962
, 966 (5th Cir. 1992).   Moreover, there is ample evidence

that Perez recruited Juarez and exercised some degree of

authority over him.   Recruitment of accomplices is a factor to be

considered under § 3B1.1.    United States v. Giraldo, 
111 F.3d 21
,

24-25 (5th Cir. 1997).

     As the district court’s findings are plausible in light of

the record as a whole, they are not clearly erroneous.     United

States v. Watson, 
966 F.2d 161
, 162 (5th Cir. 1992).     Therefore,

we AFFIRM the judgment of the district court.

     AFFIRMED.

Source:  CourtListener

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