United States v. Juan Ruiz-Rivera , 598 F. App'x 304 ( 2015 )

Case: 14-40473 Document: 00512978409 Page: 1 Date Filed: 03/23/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40473 FILED
Summary Calendar March 23, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN RUIZ-RIVERA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-1443
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Juan Ruiz-Rivera appeals the 92-month sentence imposed following his
guilty plea conviction for conspiracy to harbor illegal aliens. A teenage girl
smuggled in the course of this conspiracy died from heat stroke.
Ruiz-Rivera argues that the district court erred in applying the nine-
level enhancement pursuant to U.S.S.G. § 2L1.1(b)(2)(C). He contends that
the court relied on the Presentence Report (PSR) in imposing the enhancement
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40473
and that the PSR contained unreliable information. We review this issue for
clear error. See United States v. Betancourt, 422 F.3d 240, 244-45 (5th Cir.
2005).
Section 2L1.1(b)(2)(C) provides that a defendant will receive a nine-level
enhancement if the offense involved the harboring of 100 or more illegal aliens.
The district court, relying on information in the PSR, found that the instant
offense involved 132 aliens. The defendant has the burden of presenting
evidence to show that the facts contained in the PSR are inaccurate or
materially untrue. United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013).
Given the lack of rebuttal evidence provided by Ruiz-Rivera as to the number
of illegal aliens harbored, the PSR’s calculation was not implausible and,
therefore, was not clearly erroneous. See id.; see also Betancourt, 422 F.3d at
247.
Ruiz-Rivera also challenges the application of a two-level enhancement
under U.S.S.G. § 2L1.1(b)(6) based on a finding that the offense involved
intentionally or recklessly creating a substantial risk of death or serious bodily
injury. He contends that evidence the house was chained and padlocked is
insufficient to support the enhancement. He further asserts that the evidence
that a GMC SUV was used to transport 24 aliens is insufficient to support the
enhancement.
The objections to this enhancement argued by Ruiz-Rivera in the district
court did not sufficiently apprise the court of the basis of the challenge to the
enhancement he now asserts on appeal. Therefore, we review the issue for
plain error. See United States v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014).
Section 2L1.1(b)(6) provides for a two-level increase “[i]f the offense
involved intentionally or recklessly creating a substantial risk of death or
serious bodily injury to another person.” Though the house was equipped with
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No. 14-40473
water, electricity, and air conditioning, the photographs of the house show
limited furniture. Additionally, all of the windows were equipped with burglar
bars. The exits of the house, the front porch and gate, were chained and
padlocked. On at least one known occasion, 24 aliens were harbored at the
stash house. This evidence is sufficient to support the enhancement. See
United States v. Zuniga-Amezquita, 468 F.3d 886, 887-88 (5th Cir. 2006).
Moreover, 24 passengers in the vehicle are “substantially more” than the
vehicle’s maximum load capacity of 8. See § 2L1.1, comment. (n.5). Ruiz-
Rivera fails to show that the district court committed plain or obvious error in
the application of this enhancement. See Puckett v. United States, 556 U.S.
129, 135 (2009).
The judgment of the district court is AFFIRMED.
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