# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-50486 Summary Calendar

____________ United States of America, Plaintiff—Appellee ,

versus Hipolito Rodriguez-Gutierrez, Defendant—Appellant

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______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:18-CR-758-2

______________________________ Before Barksdale, Stewart, and Ramirez, Circuit Judges

. Per Curiam: * Hipolito Rodriguez-Gutierrez challe nges his within-Guidelines 210- months’ sentence, imposed following his guilty-plea conviction for conspiracy to import more than five kilograms of cocaine, in violation of 21U.S.C. § 963. In doing so, he contends the court wrongly applied a threelevel adjustment under Sentencing Guideline § 3B1.1(b) (applying

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* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED August 20, 2024

Lyle W. Cayce Clerk Case: 23-50486 Document: 71-1 Page: 1 Date Filed: 08/20/2024No. 23-50486

2 enhancement for “manager[s] or “s upervisor[s]” where conspiracy “involved five or more participants or was otherwise extensive”), based on its finding he was a manager or supervi sor of the conspira cy. (Although not listed as an issue on appeal, Rodriguez’ brief also states “his sentence is unreasonable in light of the sentencing factors in 18 U.S.C. § 3553(a)”. His brief, however, solely cont ends the court erred in ap plying the adjustment. Therefore, this substantive-unreasonableness contention, to the extent he makes one, is waived. “A party that asserts an ar gument on appeal, but fails to adequately brief it, is d eemed to have waived it.” United States v. Scroggins , 599 F.3d 433, 446 (5th Cir. 2010) (citation omitted); see also Fed. R. App. P. 28(a)(7)–(8) (outlining require ments for appellant’s brief).) Although post- Booker , the Guidelines are advisory only, the district court must avoid significant procedural error, such as impr operly calculating the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 46, 51 (2007). If no such procedural error ex ists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez , 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo ; its factual findings, only for clear error. E.g. , United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008).
“The determination that a defendant qualifies for an enhancement for his role as a manager or supervisor is a factual finding reviewed for clear error.” United States v. Nava , 624 F.3d 226, 229 (5th Cir. 2010). For the following reasons, the court did not clearly err. An adjustment under § 3B1.1 applie s if “the defendant either (1) exercised control over another participant in the offense, or (2) exercised management responsibility over the pr operty, assets, or activities of a Case: 23-50486 Document: 71-1 Page: 2 Date Filed: 08/20/2024No. 23-50486

3 criminal organization.” United States v. Delgado , 672 F.3d 320, 345 (5th Cir. 2012) ( en banc ) (citation omitted); see Guideline § 3B1.1 cmt. n.2 (permitting sentencing enhancements in these ci rcumstances). Although Rodriguez objected to information in the presen tence investigation report (PSR), he failed to show that it was materially untrue. See United States v. Alaniz , 726 F.3d 586, 619 (5th Cir. 2013) (expla ining defendant bears burden of showing PSR’s material falsity). The record showed Rodriguez played a significant role in facilitating the concealment and transportati on of large quantities of cocaine, and he was one of the few co-c onspirators present at delivery. Our court has affirmed findings of a supervi sory or managerial role under similar facts. E.g. , Delgado , 672 F.3d at 344–45 (affirming adjustment where defendant coordinated the transporta tion and delivery of narcotics).
AFFIRMED

. Case: 23-50486 Document: 71-1 Page: 3 Date Filed: 08/20/2024