United States v. Leonel Gonzalez-Mendoza , 401 F. App'x 995 ( 2010 )

Case: 09-20700 Document: 00511301525 Page: 1 Date Filed: 11/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 22, 2010
No. 09-20700
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEONEL GONZALEZ-MENDOZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-cr-191-5
Before KING, BENAVIDES, and ELROD, Circuit Judges:
PER CURIAM:*
Leonel Gonzalez-Mendoza appeals his 37-month sentence, following his
guilty-plea conviction for conspiracy to transport and harbor undocumented
aliens within the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),
(a)(1)(A)(iii), (a)(1)(B)(i), and (a)(1)(A)(v)(I). He argues, as he did in the district
court, that the district court erred when it increased his offense level by six
levels pursuant to U.S.S.G. § 2L1.1(b)(2)(B) based on its finding that he was
accountable for transporting or harboring at least 25, but not more than 99,
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 09-20700
illegal aliens in the United States, and when it increased his offense level by four
levels pursuant to § 2L1.1(b)(5)(B) based on its finding that his codefendants
brandished a firearm during the offense.
After Booker, this court reviews a sentence for reasonableness under an
abuse-of-discretion standard. United States v. Herrera-Garduno, 519 F.3d 526,
529 (5th Cir. 2008). “In performing this review, we ‘first ensure that the district
court committed no significant procedural error’ and ‘then consider the
substantive reasonableness of the sentence imposed.” Id. (quoting Gall v. United
States, 128 S. Ct. 586, 597 (2007)). The district court’s application of the
Sentencing Guidelines is reviewed de novo, while its factual findings are
reviewed for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008).
In the instant case, the Presentence Report (PSR) indicated that (1) 22
illegal aliens were present at the stash house, including Gonzalez-Mendoza and
his four co-defendants; (2) Gonzalez-Mendoza participated in the conspiracy for
at least ten days; (3) “at least one to two loads [of aliens]” comprised of two to ten
aliens each arrived at the stash house every week; (4) three firearms were seized
from the stash house during the security sweep; and (5) several of the smuggled
aliens saw firearms in the smugglers’ possession.
Gonzalez-Mendoza’s objections to the PSR with respect to the
enhancements were insufficient to rebut the information it contained. See
United States v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998); United States v.
Vital, 68 F.3d 114, 120 (5th Cir. 1995). In light of the PSR, the trial court did
not clearly err in finding that he harbored or transported at least 25, but fewer
than 99, illegal aliens as it was plausible that three loads of ten aliens had
arrived during the ten days that Gonzalez-Mendoza admittedly participated in
the conspiracy. In addition, the information contained in the PSR establishes
that Gonzalez-Mendoza’s codefendants brandished a firearm—relevant conduct
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No. 09-20700
for which he is held responsible. See Cisneros-Gutierrez, 517 F.3d at 764; United
States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010); U.S.S.G. § 1B1.3(a)(1)(B).
AFFIRMED.
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