90 F. App'x 74

UNITED STATES of America, Plaintiff-Appellee, v. Omar RODRIGUEZ-TAMEZ, Defendant-Appellant.

No. 03-40445.

Summary Calendar

United States Court of Appeals, Fifth Circuit.

March 18, 2004.

Mitchel Neurock, US Attorney’s Office, Laredo, TX, James Lee Turner, Assistant US Attorney, US Attorney’s Office, Houston, TX, for Plaintiff-Appellee.

Richard Javier Gonzalez, Laredo, TX, for Defendant-Appellant.

Before SMITH, DEMOSS, and STEWART, Circuit Judges.

PER CURIAM.*

Omar Rodriguez-Tamez appeals his sentence for his guilty-plea conviction of conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Rodriguez-Tamez argues that the district court clearly erred in imposing a two-level offense-level enhancement based on his role as a manager or supervisor in the offense, pursuant to U.S.S.G. § 3B 1.1(c).

The record does not contain sufficient reliable evidence to support the district *75court’s finding that Rodriguez-Tamez organized, led, managed, or supervised at least one other person who was criminally culpable in, though not necessarily convicted for, the offense. See United States v. Jobe, 101 F.3d 1046, 1068 (5th Cir.1996); U.S.S.G. § 3B1.1, comment, (ns.1-2). Accordingly, Rodriguez-Tamez’s sentence is VACATED and this case is REMANDED for resentencing as to this issue, without prejudice to the possibility that an upward departure might be warranted for Rodriguez-Tamez’s management responsibility of the property, assets or activities of the conspiracy. See Jobe, 101 F.3d at 1068 & n. 30; U.S.S.G. § 3B1.1, comment, (n.2).

VACATED AND REMANDED.

United States v. Rodriguez-Tamez
90 F. App'x 74

Case Details

Name
United States v. Rodriguez-Tamez
Decision Date
Mar 18, 2004
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90 F. App'x 74

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United States

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