United States v. Gamez , 344 F. App'x 952 ( 2009 )


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  •             IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    September 22, 2009
    No. 09-40084
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    BRENDA ANN GAMEZ,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:08-CR-660-1
    Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Brenda Ann Gamez appeals the sentence imposed following her guilty plea
    conviction for transporting an unlawful alien in violation of 8 U.S.C.
    § 1324(a)(1)(A)(ii) & (B)(ii). She argues that the district court erred in denying
    her a reduction in her offense level for her minor role in the offense pursuant to
    U.S.S.G. § 3B1.2. A defendant has the burden of showing that she is entitled to
    the downward adjustment.1 Whether the defendant is a minor participant is a
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    1
    United States v. Garcia, 
    242 F.3d 593
    , 597 (5th Cir. 2001).
    No. 09-40084
    factual determination that is reviewed for clear error.2 “A factual finding is not
    clearly erroneous if it is plausible in light of the record read as a whole.”3
    Gamez has not shown that the district court clearly erred in finding that
    she was not entitled to a minor role adjustment under § 3B1.2. Notwithstanding
    that Gamez’s role in transporting the alien child in the offense of conviction may
    have been only part of a larger smuggling scheme, Gamez was charged with
    transporting an undocumented alien for private financial gain – and the record
    demonstrates that she agreed to transport a child who she knew was an
    undocumented alien across the United States border for private financial gain.
    Gamez’s role was not minor, but was central to the transportation of the
    undocumented alien child.4 The district court did not clearly err in denying her
    a role adjustment under § 3B1.2.
    Gamez also argues that the district court erred in finding that she should
    be held accountable for her relevant conduct in a previous alien smuggling
    offense and that the district court erred in denying her a three-level reduction
    in her offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. She
    argues that she pleaded guilty to and admitted her involvement in the instant
    offense of transporting an illegal alien. She argues that the Government failed
    to prove that she was involved in the prior alien smuggling offense, and she
    affirmatively denied any involvement in the prior offense.
    The district court did not clearly err in finding that Gamez was involved
    in the prior alien smuggling offense and should be held accountable for her
    relevant conduct in that offense. Further, the district court did not clearly err
    in finding that Gamez denied her relevant conduct and, therefore, was not
    2
    United States v. Villanueva, 
    408 F.3d 193
    , 203 & n.9 (5th Cir. 2005).
    3
    
    Id. at 203
    (citation omitted).
    4
    See 
    Garcia, 242 F.3d at 598-99
    ; United States v. Marmolejo, 
    106 F.3d 1213
    , 1217 (5th
    Cir. 1997).
    2
    No. 09-40084
    entitled to a reduction in her offense level for acceptance of responsibility.5 The
    Presentence Report (PSR) and sentencing transcript support the conclusion that
    Gamez was involved in the prior alien smuggling offense, and Gamez
    consistently denied her involvement in that offense. Although Gamez was not
    required to affirmatively admit relevant conduct, she denied relevant conduct
    that the district court found to be true.6 Because the record provides a sufficient
    foundation for the district court’s finding that Gamez was involved in the
    previous alien smuggling offense and for the district court’s denial of acceptance
    of responsibility, the district court did not clearly err in holding Gamez
    accountable for her relevant conduct in the prior alien smuggling offense or in
    denying a reduction in her offense level for acceptance of responsibility.7
    AFFIRMED.
    5
    See United States v. Solis, 
    299 F.3d 420
    , 458 (5th Cir. 2002); United States v. Outlaw,
    
    319 F.3d 701
    , 705 (5th Cir. 2003) (reciting that – for denials of a reduction for acceptance of
    responsibility – the standard of review is even more deferential than the pure clearly
    erroneous standard).
    6
    See U.S.S.G. § 3E1.1 cmt. n.1(a); United States v. Medina-Anicacio, 
    325 F.3d 638
    , 648
    (5th Cir. 2003).
    7
    See 
    Medina-Anicacio, 325 F.3d at 648
    .
    3