USA v. Hernandez, No. 05-41817 (5th Cir. 2007)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 05-41817 Summary Calendar December 17, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ELHIM HERNANDEZ Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-952-1 Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit Judges PER CURIAM:* Elhim Hernandez pleaded guilty to conspiracy to possess with intent to distribute and possession with intent to distribute over 100 kilograms of marijuana, and he was sentenced to 78 months of imprisonment and four years of supervised release. Hernandez argues on appeal that the district court clearly erred in increasing his offense level pursuant to U.S.S.G. § 3B1.1(c) based on his role as * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41817 an organizer, leader, supervisor, or manager. Because testimony at sentencing supports a determination that Hernandez asserted control or influence over at least one other participant in the crime, the district court did not clearly err in applying the § 3B1.1(c) adjustment. See § 3B1.1, comment. (n.2); United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006). Hernandez also argues on appeal that the district court clearly erred in increasing his offense level by two levels pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. However, the district court did not clearly err in applying the § 3C1.1 adjustment because its determination that Hernandez s statements to his co-defendants constituted threats against speaking with authorities was plausible in light of the record as a whole. See United States v. Mann, 493 F.3d 484, 498 (5th Cir. 2007); Rose, 449 F.3d at 633; United States v. Brown, 54 F.3d 234, 242 (5th Cir. 1995). AFFIRMED. 2

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