UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10726 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERIBERTO VELARDE-JACQUEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (4:00-CR-292-2-A) _________________________________________________________________ January 8, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:

PER CURIAM:*

Heriberto Velarde-Jacquez challenges the sentence imposed

following his guilty-plea conviction for possession with the intent

to distribute 315 kilograms of marijuana, in violation of

(a)(1). He maintains the district court erred: in finding he

was a leader or organizer of the offense, resulting in a four-level

sentencing increase, pursuant to U.S.S.G. § 3B1.1(a); and in

failing to award a two-level “safety-valve” sentencing reduction,

pursuant to

and U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2.

The district court’s findings of fact are, of course, reviewed only

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. for clear error. E.g., United States v. Gonzales,

(5th Cir. 1994).

Regarding the leader or organizer increase, Velarde contends:

he was incorrectly labeled a leader in the absence of any evidence

he had a larger share in the fruits of the crime or recruited or

exercised any control over others; his brother Manuel was the true

leader; and he acted only as directed by Manuel.

The presentence report (PSR) determined that Velarde was the

“mastermind” behind the offense: Velarde served as the marijuana

supplier; controlled the price, quantity, and delivery of the

substance; supervised the truck driver who crossed the border from

Mexico with the marijuana and delivered it; used a codefendant as

a middleman in conducting negotiations for the sale and delivery of

the marijuana; and acted as the final decisionmaker with respect to

the transaction. See U.S.S.G. § 3B1.1, cmt. n.4. The district

court adopted the PSR’s findings and recommendations, having also

overruled Velarde’s objections.

Velarde offered no evidence in support of his assertion that

his brother was the true organizer, nor did he offer any evidence

to controvert the PSR’s findings regarding his leadership role, as

was his burden. See United States v. Lage,

(5th

Cir. 1999), cert. denied,

(2000). The district court

did not clearly err in finding Velarde to be a leader or organizer

within the meaning of § 3B1.1(a). See United States v.

Posada-Rios,

(5th Cir. 1998), cert. denied, 526

(1999), and cert. denied,

(1999), and cert.

denied,

(1999).

Velarde also argues that he was entitled to a two-level

reduction, or a “safety-valve” sentence, pursuant to

and U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2. Velarde had to satisfy

all five components of

(f), one of which provides

that the defendant not be an organizer, leader, manager, or

supervisor of others in the offense. The district court’s leader-

finding disqualified Velarde from safety-valve consideration.

AFFIRMED.

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