United States v. Mata-Delgado ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41008
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID MATA-DELGADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-202-1
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August 6, 2001
Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
David Mata-Delgado (Mata) appeals the sentence imposed by
the district court following his guilty-plea conviction to
possession of marijuana with intent to distribute. He asserts
that the district court misapplied U.S.S.G. § 3B1.2 and refused
to give him a downward adjustment for his role in the offense by
requiring that another individual had to be prosecuted for the
guideline to apply. This court reviews the sentencing judge’s
application of the guidelines de novo. United States v.
Patterson, 962 F.2d 409, 416 (5th Cir. 1992). The record does
*
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that this opinion should not be published and is not precedent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.
No. 00-41008
-2-
not reveal that the district court failed to impose the guideline
based upon a mistaken belief that another individual had to be
charged, prosecuted, or convicted. Mata has failed to show that
the district court misapplied the Sentencing Guidelines.
Mata also contends that the district court clearly erred in
its factual finding that no other individual was involved in the
offense, in light of a statement in the presentence report
stating that Mata was recruited by another individual to
transport the marijuana across the border. A district court’s
factual finding regarding a defendant’s role in the offense is
reviewed for clear error. United States v. Gallegos, 868 F.2d
711, 713 (5th Cir. 1989). Based upon the statements made at
sentencing, it is unclear whether the district court found that
no other individual was involved in an uncharged conspiracy and
that Mata acted entirely alone or whether it concluded that there
was no showing that another individual participated in the
possession-with-intent-to-distribute charge, the only charge
taken into consideration at sentencing. See United States v.
Atanda, 60 F.3d 196, 199 (5th Cir. 1995). Because it is not
clear whether the district court committed clear error in its
factual finding, Mata’s sentence is VACATED and the case REMANDED
for further consideration.
VACATED AND REMANDED.