United States v. Cruz

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50490 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

JOSE ISMAEL CRUZ,

Defendant-Appellant.

******************** Consolidated with 00-50492 and 00-50493 ********************

JOSE CRUZ, also known as Pepe, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1640-H USDC No. EP-00-CR-92-H USDC No. EP-00-CR-1000-H -------------------- April 30, 2001

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

PER CURIAM:*

Jose Ismael Cruz appeals from the district court's sentence

following a guilty plea to one count of importing into the United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50490 No. 00-50492 No. 00-50493 -2-

States 1,000 or more kilograms of marijuana in violation of 21

U.S.C. §§ 952(a) and 960(a)(1), one count of possession with

intent to distribute 1,000 or more kilograms of marijuana in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1), and three

counts of assaulting a federal officer in violation of 18 U.S.C.

§ 111. Finding no error, we affirm.

The Government contends that this appeal should be dismissed

due to Cruz's waiver of his right to appeal in the plea

agreements. We find, however, that Cruz was not properly

admonished by the district court and that the waiver is invalid.

See United States v. Robinson, 187 F.3d 516, 517-18 & n.1 (5th

Cir. 1999); Fed. R. Crim. P. 11(c)(6).

Cruz argues that the district court's sentence enhancement

for being a leader or organizer of a criminal activity that

involved five or more participants or was otherwise extensive was

improper because he did not direct at least five participants in

the drug offenses. We have consistently held that a defendant

need direct only one of the five culpable participants for this

enhancement. See United States v. Washington, 44 F.3d 1271, 1281

(5th Cir. 1995); United States v. Okoli, 20 F.3d 615, 616 (5th

Cir. 1994). We find that the facts in the PSR provide sufficient

evidence that Cruz was a leader or organizer. See United States

v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995); U.S.S.G. § 3B1.1,

comment. (n.4). There is no clear error.

Cruz next argues that the district court erred by enhancing

his sentence for obstruction of justice. We find that the No. 00-50490 No. 00-50492 No. 00-50493 -3-

district court was not clearly erroneous to apply this

enhancement. See United States v. Singer, 970 F.2d 1414, 1419

(5th Cir. 1992); United States v. Alfaro, 919 F.2d 962, 966 (5th

Cir. 1990).

Finally, Cruz argues that his sentence for assault should

not have been enhanced due to the victims' status as law

enforcement officers because he pleaded guilty to the offense of

assault on a federal officer. Cruz's argument is foreclosed by

our prior decisions. See United States v. Kings, 981 F.2d 790,

792-93 (5th Cir. 1993); United States v. Kleinebreil, 966 F.2d

945, 955 (5th Cir. 1992). Cruz also argues for the first time on

appeal that the official victim status adjustment requires that

the assault occur during the commission of another crime. We do

not find error in Cruz's sentence, but even assuming there was

error in determining the base offense level for assault, such

error was harmless. See United States v. Sidhu, 130 F.3d 644,

652 (5th Cir. 1997).

AFFIRMED.