### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41118 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ANTONIO MENDOZA-AGUIRRE, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:12-CR-75-2

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges. PER CURIAM: * Antonio Mendoza-Aguirre (Mendoza) a p p e als his sentence following his guilty plea conviction for possession with intent t o distribute 1,000 k ilograms or
more of marijuana. H e challenges the d istrict court’s assessment o f t wo enhancements under the Sentencing Guidelines. He contends that the district court e rred i n f

i n d ing under U.S.S.G. § 3B1.1(b) that he was a supervisor in criminal activity that involved five o r more participants a nd t h at the district U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 17, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-41118 Document: 00512376823 Page: 1 Date Filed: 09/17/2013No. 12-41118

court erred in finding under § 2D1.1(b)(12) that he m aintained a p remises for the purpose of distributing a controlled substance. We review t he district court’s factual findings at sentencing for clear error. See United States v. Nava , 624 F.3d 226, 229 (5th Cir. 2 010). “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” Id. (internal quotation marks and citation omitted). Section 3B1.1(b) provides for a three-level enhancement “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved f ive or more participants or was otherwise extensive.” Section 2D1.1(b)( 1 2 ) provides for a two-level enhancement if the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution. § 2D1.1(b)(12); § 2D1.1, comment. (n.28). The premises need not be used exclusively for manufacturing

or distribution of controlled substances, but s uch dr u g a ctivity must be a primary or principal purpose of the premises. § 2D1.1, comment. (n.28). R e g a r di n g the § 3B1.1(b) enhanceme n t , M e n d o z a c o n t e n d s th a t th e di s t ri c t court erroneously attributed to him responsibili ty o v e r a codefendant’s residence and money retrieved from that r esidence. H e asserts that h e was merely an underling to that codefendant, who was the actual manager or supervisor in the marijuana operation. With respect to t h e § 2D1.1(b)(12) e nhancement, Mendoza does not dispute that over 1,000 kilograms of marijuana had been packaged at his own home but c ontends t hat there was no e vi d e n c e of h ow frequently his home was used for the marijuana operation and how frequently it was used as a lawful residence. T h e evidence indicated that Mendoza paid rent and lived at a r esiden c e where o ver 1,000 kilograms of marijuana had been packaged by at least five

wor k e r s , Mendoza was p artly responsible for hiring at least two of those workers, materials used to package t h e m arijuana w ere found throughout Mendoza’s residence, Mendoza’s residence was one of the stash h ouses to which
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marijuana loads were transported, and the marijuana packaging operation had been significant enough to p r oduce sizable earnings. Based on the record as a whole, the d i strict court d id not clearly err in f i n d i n g t hat Mendoza was a sup e r v isor in criminal activity involving five or more p articipants and that he maintained a premises for the purpose of distributing a controlled substance. See§ 3B1.1(b); § 2D1.1(b)(12). AFFIRMED.

3 Case: 12-41118 Document: 00512376823 Page: 3 Date Filed: 09/17/2013