USA v. Anselmo Gonzalez-Mendoza

Filing

UNPUBLISHED OPINION FILED. [09-20696 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 12/13/2010 for Appellant Anselmo Gonzalez-Mendoza [09-20696]

USA v. Anselmo Gonzalez-Mendoza Case: 09-20696

Document: 00511301331 Page: 1 Date Filed: 11/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20696 S u m m a r y Calendar November 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A N S E L M O GONZALEZ-MENDOZA, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-191-3

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A n s e lm o Gonzalez-Mendoza (Gonzalez) appeals the 37-month sentence im p o s e d after he pleaded guilty to one count of conspiracy to transport and h a r b o r unlawful aliens. Gonzalez contends that the district court erred in a p p ly in g a six-level enhancement to his offense level based on his having s m u g g le d , transported, or harbored at least 25 aliens under U.S.S.G. § 2L1.1(b)(2) and in applying a two-level enhancement under § 2L1.1(b)(8) based o n the involuntary detention of an alien through threat or coercion, or in
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-20696 Document: 00511301331 Page: 2 Date Filed: 11/22/2010 No. 09-20696 c o n n e c t io n with a demand for payment. We review the district court's

a p p lic a t io n of the Sentencing Guidelines de novo and its factual findings for c le a r error. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2 0 0 8 ). T h e district court adopted the calculation in the presentence report (PSR) th a t the conspiracy involved the smuggling, transporting, or harboring of at least 2 5 unlawful aliens. That calculation was based in part on the discovery of 17 u n la w fu l aliens being harbored by Gonzalez and his co-conspirators at a house in Houston. Admissions by Gonzalez, statements by some of his co-conspirators, a n d interviews with some of the unlawful aliens who had been harbored in the H o u s t o n residence, all described the conspirators' transporting and harboring o f numerous unlawful aliens in the weeks before the authorities raided the house in Houston. Gonzalez, by his own admission, was at the house approximately 2 0 days before his arrest. Also, the PSR stated that inside the house authorities fo u n d a ledger containing multiple pages of names, telephone numbers, and c o r r e s p o n d i n g dollar amounts, which authorities believed to be a record of the c o n s p ir a t o r s ' smuggling activities. In addition to relying upon the factual basis, t h e district court was entitled to rely upon the information in the PSR because it bore "some indicia of reliability." United States v. Scher, 601 F.3d 408, 413 (5 t h Cir. 2010). Gonzalez has failed to meet his burden of presenting rebuttal e v id e n c e to demonstrate that the information in the PSR is inaccurate or m a t e r ia lly untrue. See id. The record shows that the district court's application o f the six-level enhancement was plausible in light of the record as a whole. United States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006); see also United S ta te s v. Cabrera, 288 F.3d 163, 166-73 (5th Cir. 2002). B o t h the factual basis that Gonzalez admitted was true and the PSR r e p o r t e d statements of numerous unlawful aliens who described how Gonzalez a n d his co-conspirators had detained unlawful aliens under armed guard at the H o u s t o n residence and demanded additional payments in exchange for their 2

Case: 09-20696 Document: 00511301331 Page: 3 Date Filed: 11/22/2010 No. 09-20696 r e le a s e . Also, agents recovered firearms from the residence. Thus, the district c o u r t's application of the two-level enhancement was likewise plausible in light o f the record as a whole. See Gonzales, 436 F.3d at 584; see also Scher, 601 F.3d a t 413. AFFIRMED.

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