United States v. Rodriguez-Tamez

90 F. App'x 74

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 18, 2004
• Docket: 03-40445
• Status: Unpublished

Opinion

PER CURIAM. *

Omar Rodriguez-Tamez appeals his sentence for his guilty-plea conviction of conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Rodriguez-Tamez argues that the district court clearly erred in imposing a two-level offense-level enhancement based on his role as a manager or supervisor in the offense, pursuant to U.S.S.G. § 3B 1.1(c).

The record does not contain sufficient reliable evidence to support the district court’s finding that Rodriguez-Tamez organized, led, managed, or supervised at least one other person who was criminally culpable in, though not necessarily convicted for, the offense. See United States v. Jobe, 101 F.3d 1046, 1068 (5th Cir.1996); U.S.S.G. § 3B1.1, comment, (ns.1-2). Accordingly, Rodriguez-Tamez’s sentence is VACATED and this case is REMANDED for resentencing as to this issue, without prejudice to the possibility that an upward departure might be warranted for Rodriguez-Tamez’s management responsibility of the property, assets or activities of the conspiracy. See Jobe, 101 F.3d at 1068 & n. 30; U.S.S.G. § 3B1.1, comment, (n.2).

VACATED AND REMANDED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.