UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANA VILLANUEVA-ALVARADO, Defendant-Appellant.
No. 08-40096
United States Court of Appeals, Fifth Circuit.
Sept. 10, 2008.
291 Fed. Appx. 684
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
Ana Villanueva-Alvarado appeals the sentence imposed following her guilty-plea conviction for conspiracy to transport and harbor undocumented aliens for the purpose of financial gain in violation of
We review the district court‘s application of the Sentencing Guidelines de novo and its findings of fact for clear error. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008); United States v. Charon, 442 F.3d 881, 887 (5th Cir.), cert. denied, 549 U.S. 915, 127 S.Ct. 260, 166 L.Ed.2d 202 (2006). Although there was no direct evidence that Villanueva-Alvarado knew one of her co-conspirators possessed and brandished a weapon during the course of the offense, the evidence supported the district court‘s finding that the brandishing of a weapon by one of her co-conspirators was reasonably foreseeable to her. Accordingly, the district court did not clearly err when it enhanced Villanueva-Alvarado‘s offense level pursuant to § 2L1.1(b)(5)(B). Moreover, because Villanueva-Alvarado was sentenced within the recommended guidelines range, her sentence is presumptively reasonable. See Gall v. United States, — U.S. —, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). The district court‘s judgment is AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee, v. Gerald STONE, Individually, Also Known as Ranscott Construction, Inc., Defendant-Appellant.
No. 08-10200
United States Court of Appeals, Fifth Circuit.
Sept. 10, 2008.
291 Fed. Appx. 684
Summary Calendar.
John D. Nation, for Defendant-Appellant.
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
According to his notice of appeal, Gerald Stone appeals “from the order of the District Court, dated February 19, 2008, wherein the Court, in granting the Government‘s motion to quash certain writs of garnishment, stated that the other writs of garnishment, which were subject to Appellant‘s motion to quash, would continue in force and effect.” This court sent both parties a notice directing them to brief the issue “[w]hether the order granting the motion to quash writs of garnishment entered on February 20, 2008, from which appeal is taken, is appealable at this stage of the litigation pursuant to R. 54(b), Fed.R.Civ.P., or the collateral order doctrine, or whether there exists some other basis of appellate jurisdiction. See generally
Stone did not address this issue in his opening brief. In its brief, the government presented approximately five pages of explication as to why we have no jurisdiction at this time. Stone did not file a reply brief.
As the appellant, Stone has the obligation to show jurisdiction. Moreover, the government is correct that, for the reasons it gives, the order designated in the notice of appeal is not a final, appealable order. As the government explains, “Stone appears to have filed the appeal based on a misunderstanding of the difference between the effectiveness of a writ [of garnishment] and the final disposition order in a garnishment action.... Because all issues in the garnishment action have not been resolved, the order on appeal is not a final order, and there is no appellate jurisdiction under section 1291.”
Stone is not put in jeopardy by the dismissal of the appeal. As the government helpfully points out, “The order appealed was entered as a procedural matter to dismiss those garnishees that did not hold any funds.... Stone may appeal this order, if he chooses, after a final disposition order is entered in the district court.”
The appeal is DISMISSED for want of appellate jurisdiction.