United States v. Hebert

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30899 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOAN HEBERT,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 95-CR-257-2-F -------------------- June 13, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges

PER CURIAM:*

Joan Hebert appeals the sentence imposed for her convictions

of possession with the intent to distribute cocaine base and

cocaine powder in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2. She argues that the district court clearly erred in

finding that she had occupied a supervisory role in the illicit

enterprise.

This court reviews the sentencing court's application of the

sentencing guidelines de novo and accepts the sentencing court's

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30899 -2-

findings of fact unless they are clearly erroneous. United

States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995).

The sentencing guidelines mandate a two-level increase in

the defendant’s offense level if the defendant was “an organizer,

leader, manager, or supervisor in any criminal activity"

involving fewer than five participants. See § 3B1.1(c). To

qualify for this adjustment, “the defendant must have been the

organizer, leader, manager, or supervisor of one or more other

participants.” § 3B1.1, comment. (n.2). A sentencing court's

determination that a defendant played a leadership role is a

factual finding reviewable only for clear error. See United

States v. Parker, 133 F.3d 322, 329 (5th Cir.), cert. denied, 523

U.S. 1142 (1998). The district court’s findings are not clearly

erroneous if they are plausible in light of the record viewed in

its entirety. See United States v. Kelley, 140 F.3d 596, 609

(5th Cir.), cert. denied, 525 U.S. 908 (1998).

Viewed as a whole, the record contains sufficient reliable

evidence to support the district court’s finding that Hebert

played a supervisory role in the offense. See United States v.

Powell, 124 F.3d 655, 667 (5th Cir. 1997), cert. denied, 522 U.S.

1130 (1998). Accordingly, her sentence is

AFFIRMED.