United States v. Fernandez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50611 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTOS ARNOLDO FERNANDEZ, also known as Sonny,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-00-CR-156-2-JN -------------------- April 19, 2002

Before DeMoss, Parker, and Dennis, Circuit Judges.

PER CURIAM:*

Santos Arnoldo Fernandez appeals his sentence following

conviction for three counts of conspiracy and possession with

intent to distribute illegal narcotics. Fernandez argues that the

district court was clearly erroneous in determining his role in the

offense. We review a district court’s determination of, for

sentencing guidelines purposes, a defendant’s role in the offense

for clear error. United States v. Miranda, 248 F.3d 434, 446 (5th

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 Cir. 2001), cert. denied, 122 S. Ct. 823 (2002).

Section 3B1.1(b) of the sentencing guidelines provides for a

three-level increase “[i]f the defendant was a manager or

supervisor (but not an organizer or leader) and the criminal

activity involved five or more participants or was otherwise

extensive.” The district court’s finding is supported by the

testimony of the FBI agent Greg Smith that his surveillance showed

that Fernandez’s role was that of “chief lieutenant, most trusted

confidante, ... enforcer.” Fernandez has not shown that Smith’s

testimony was unreliable. See United States v. Patterson, 962 F.2d

409, 415 (5th Cir. 1992). The district court did not clearly err

by finding that Fernandez was a manager or supervisor of the

criminal activity not a minor participant and by adjusting the

offense level accordingly.

Fernandez argues that the district court erred by finding that

he obstructed justice and increasing his offense level under §

3C1.1 of the sentencing guidelines. This is a factual finding

reviewed for clear error. United States v. Upton, 91 F.3d 677, 687

(5th Cir. 1996). A codefendant testified that Fernandez threatened

him about testifying by stating that anyone who “talked” would be

killed “along with their family.” The district court did not

clearly err by applying § 3C1.1 to Fernandez's sentence.

AFFIRMED.