United States Court of Appeals

for the Fifth Circuit

No. 21-40437

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Jose Manuel Lopez, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:19-CR-182-5

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:*

Jose Manuel Lopez was convicted of conspiracy to possess with intent 

to distribute five kilograms and more of a mixture and substance containing 

a detectable amount of cocaine, its salts, optical and geometric isomers, and 

salts of isomers. He was sentenced to 120 months of imprisonment and five 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 6, 2022

Lyle W. Cayce

Clerk

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years of supervised release. He argues on appeal that the district court erred 

in enhancing his sentence under U.S.S.G. § 3B1.1(c) based on his role as an 

organizer, leader, manager, or supervisor and in denying him a safety-valve

adjustment. He contends that there was not at least one “participant” in the 

offense and that he was only a middleman who received instructions from 

others during the drug transactions at issue.

The issue whether a defendant was an organizer, leader, manager, or 

supervisor under § 3B1.1(c) is a finding of fact that isreviewed for clear error. 

United States v. Ochoa-Gomez, 777 F.3d 278, 281 (5th Cir. 2015). We review 

the issue whether Lopez was a mere middleman for clear error because he 

objected on this basis at sentencing, see United States v. Sims, 11 F.4th 315, 

324 (5th Cir. 2021), cert. denied, 142 S. Ct. 827 (2022), but we review the 

issue whether there was at least one “participant” in the offense for plain 

error only because Lopez did not present this argument in the district court, 

see United States v. Anguiano, 27 F.4th 1070, 1075 (5th Cir. 2022). To 

establish plain error, Lopez must show a clear or obvious error that affected 

his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). 

If he makes this showing, this court has the discretion to correct the error if 

it “seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings.” Id. (internal quotation marks and citation omitted, alteration 

in original).

Section 3B1.1(c) provides for a two-level enhancement “[i]f the 

defendant was an organizer, leader, manager, or supervisor in any criminal 

activity other than described in [§ 3B1.1](a) or (b).” § 3B1.1(c). To qualify 

for this enhancement, a defendant is required to have been the organizer, 

leader, manager, or supervisor of at least one other participant. § 3B1.1, 

comment. (n.2). “A ‘participant’ is a person who is criminally responsible 

for the commission of the offense, but need not have been convicted.”

§ 3B1.1, comment. (n.1). 

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Lopez has not demonstrated under the plain-error standard of review 

that it was clear or obvious error for the district court to infer from the 

available facts that Lopez controlled at least one participant. See Puckett v. 

United States, 556 U.S. at 135; United States v. Ismoila, 100 F.3d 380, 394 (5th 

Cir. 1996). Accordingly, Lopez has not demonstrated, based on this 

argument, that the district court plainly erred in applying the § 3B1.1(c) 

enhancement. See Puckett, 556 U.S. at 135; U.S.S.G. § 5C1.2(a) & comment. 

(n.5). As to Lopez’s argument that he was a mere middleman, the record

supports a plausible finding under the clear-error standard of review that he 

in fact took on a role as an organizer, leader, manager, or supervisor of at least 

one “participant”; thus Lopez has not demonstrated that the district court 

committed clear error by overruling his objection to the enhancement on this 

basis and by not applying the safety-valve reduction based on his role in the 

offense. See Ochoa-Gomez, 777 F.3d at 281-2; U.S.S.G. § 5C1.2(a) &

comment. (n.5).

AFFIRMED.

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