* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50429

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RAFAEL EDMUNDO TOVAR

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:05-CR-105

Before KING, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rafael Edmundo Tovar pleaded guilty to conspiracy to distribute more

than 50 grams of methamphetamine, possession with the intent to distribute

more than 50 grams of methamphetamine, and conspiracy to distribute more

than 200 grams of methamphetamine. The district court sentenced him to 360

months of imprisonment, five years of supervised release, and a $300 special

assessment. Tovar now appeals his sentence. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 3, 2008

Charles R. Fulbruge III

Clerk
No. 06-50429

2

Ordinarily, this court reviews a district court’s interpretation and

application of the Sentencing Guidelines de novo and reviews a district court’s

factual findings for clear error. United States v. Brazell, 489 F.3d 666, 668 (5th

Cir. 2007). Issues that were not raised in the district court are reviewed for

plain error only. United States v. Myers, 198 F.3d 160, 166 (5th Cir. 1999). 

Tovar argues that the district court erred in applying a four-level

enhancement for his being a leader or organizer because the presentence report

stated that he was a manager or supervisor, a finding that warrants only a

three-level enhancement. See U.S.S.G. § 3B1.1. The Government argues that

Tovar did not adequately raise this issue in the district court to preserve it for

appellate review and that our review should therefore be for plain error. 

At sentencing, both parties interchanged § 3B1.1’s terminology, arguing

whether Tovar was a “leader and manager.” Although the district court did at

one point refer to the question at issue as whether Tovar was a

“supervisor/manager,” it also questioned whether Tovar was the “head of the

conspiracy.” The district court did not specifically state that it found that Tovar

was a leader or organizer, although it applied the four-level enhancement

consistent with such a finding. Under either standard of review advanced by the

parties, we conclude that the application of the four-level enhancement was not

error. The testimony of DEA Agent Randel Gillette at Tovar’s sentencing

hearing was adequate to support a finding that Tovar was the leader or

organizer of the criminal activity.

Tovar also argues that his 360-month sentence is unreasonable. He

argues that the district court did not adequately consider that the instant

conviction is his first felony conviction and did not adequately consider the need

for the sentence to provide just punishment for the offense. 

Where, as here, the district court imposes a sentence within a properly

calculated guidelines range,the sentence is entitled to a rebuttable presumption

of reasonableness. See United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir.
No. 06-50429

3

2006). To rebut the presumption, Tovar must demonstrate that the sentence

“(1) does not account for a factor that should have received significant weight,

(2) gives significant weight to an irrelevant or improper factor; or (3) represents

a clear error of judgment in balancing the sentencing factors” and “falls so far

afoul of one of [these standards] as to constitute a clear error in the court’s

exercise of its broad sentencing discretion.” United States v. Nikonova, 480 F.3d

371, 376 (5th Cir.) (internal quotation marks and citation omitted), cert. denied,

128 S. Ct. 163 (2007). Tovar has not made the showing required to rebut the

presumption that his sentence within a properly calculated guidelines range is

reasonable. The judgment of the district court is AFFIRMED.