United States v. Perez

115 F. App'x 220

Opinion

PER CURIAM: *

Alejandra Briseda Perez (“Perez”) appeals the sentence imposed following her guilty-plea conviction for alien smuggling for private financial gain. Perez argues that the district court erred by finding that she was an organizer or leader of the criminal activity and applying a four-level enhancement pursuant to U.S.S.G. § 3Bl.l(a). For the first time on appeal, Perez asserts that the application of the four-level enhancement was unconstitutional under Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

The district court’s application of a U.S.S.G. § 3B1.1 adjustment is a factual matter that is reviewed for clear error. United States v. Dadi, 235 F.3d 945, 951 (5th Cir.2000). “A factual finding is not clearly erroneous as long as the finding is plausible in light of the record as a whole.” United States v. Edwards, 65 F.3d 430, 432 (5th Cir.1995) (internal quotation marks and citation omitted). The undisputed evidence showed that Perez recruited co-defendant Carlos Linan-Salinas; exercised control over his actions; and maintained a log of the names, destinations, and fees to be paid by the illegal aliens. Given these facts and “the extreme deference of the ‘clear error’ standard,” the district court’s application of the four-level enhancement for Perez being an organizer or leader of the criminal activity was not clearly erroneous. See United States v. Lowder, 148 F.3d 548, 554 (5th Cir.1998).

As Perez concedes, her Blakely argument is foreclosed by this court’s decision in United States v. Pineiro, 377 F.3d 464, 473 (5th Cir.2004), petition for cert. filed (U.S. July 14, 2004) (No. 04-5263).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.