IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40375

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MOSES LEYVA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:09-CR-971-2

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

Moses Leyva pleaded guilty to conspiring to possess more than 500 grams

of methamphetamine with intent to distribute; the district court sentenced him

to serve 262 months in prison and a five-year term of supervised release. This

direct appeal raises several challenges to Leyva’s sentence. When analyzing

such challenges, Gall v. United States, 552 U.S. 38, 51 (2007), instructs us to

determine whether the sentence imposed is procedurally sound, including

whether the calculation of the advisory guidelines range is correct. We review

United States Court of Appeals

Fifth Circuit

F I L E D

April 4, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-40375 Document: 00511433486 Page: 1 Date Filed: 04/04/2011
No. 10-40375

the district court’s interpretation and application of the Sentencing Guidelines

de novo and its findings of fact for clear error. United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Under Leyva’s view, the district court clearly erred by concluding that he

was a leader or organizer of the offense and by imposing a corresponding twolevel adjustment. The record includes evidence indicating that, at a minimum,

Leyva had supervisory authority over at least one other individual involved in

the conspiracy. The imposition of the disputed adjustment is plausible in light

of the entire record and thus is not clearly erroneous. See Cisneros-Gutierrez,

517 F.3d at 764; United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006).

Leyva challenges the district court’s imposition of a firearms adjustment.

Similar to his argument concerning the leadership adjustment, this argument

fails because it is refuted by the record, which shows that another member of the

conspiracy, with whom Leyva lived, knowingly possessed weapons in connection

with drug-related activity. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th

Cir. 2010); United States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir.

1990). Accordingly, the district court did not clearly err by concluding that

Leyva’s coconspirators used firearms during the conspiracy and that these

actions were reasonably foreseeable to Leyva. See Zapata-Lara, 615 F.3d at 390.

Next, Leyva claims that the district court erred by concluding that he

should be held responsible for more than 15 kilograms of methamphetamine.

This argument is unavailing because various portions of the record, when

considered together, show that the district court’s determination that the offense

involved at least 15 kilograms of methamphetamine is plausible and thus not

clearly erroneous. See Cisneros-Gutierrez, 517 F.3d at 764.

The judgment of the district court is AFFIRMED.

2

Case: 10-40375 Document: 00511433486 Page: 2 Date Filed: 04/04/2011