USA v. Leonel Gonzalez-Mendoza

Filing

UNPUBLISHED OPINION FILED. [09-20700 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 12/13/2010 for Appellant Leonel Gonzalez-Mendoza [09-20700]

USA v. Leonel Gonzalez-Mendoza Case: 09-20700

Document: 00511301525 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 . 09-20700 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. L E O N E L 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-191-5

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges: P E R CURIAM:* L e o n e l Gonzalez-Mendoza appeals his 37-month sentence, following his g u ilt y -p le a conviction for conspiracy to transport and harbor undocumented a lie n s 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 c o u r t, that the district court erred when it increased his offense level by six le v e ls pursuant to U.S.S.G. § 2L1.1(b)(2)(B) based on its finding that he was a c c o u n t a b le 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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Case: 09-20700 Document: 00511301525 Page: 2 Date Filed: 11/22/2010 No. 09-20700 ille g a l aliens in the United States, and when it increased his offense level by four le v e ls pursuant to § 2L1.1(b)(5)(B) based on its finding that his codefendants b r a n d is h e d a firearm during the offense. A fte r Booker, this court reviews a sentence for reasonableness under an a b u s e -o f-d is c r e t io n standard. United States v. Herrera-Garduno, 519 F.3d 526, 5 2 9 (5th Cir. 2008). "In performing this review, we `first ensure that the district c o u r t committed no significant procedural error' and `then consider the s u b s t a n tiv e reasonableness of the sentence imposed." Id. (quoting Gall v. United S ta te s , 128 S. Ct. 586, 597 (2007)). The district court's application of the

S e n te n c in g Guidelines is reviewed de novo, while its factual findings are r e v ie w e d for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5 t h Cir. 2008). I n the instant case, the Presentence Report (PSR) indicated that (1) 22 ille g a l aliens were present at the stash house, including Gonzalez-Mendoza and h is four co-defendants; (2) Gonzalez-Mendoza participated in the conspiracy for a t least ten days; (3) "at least one to two loads [of aliens]" comprised of two to ten a lie n s each arrived at the stash house every week; (4) three firearms were seized fr o m the stash house during the security sweep; and (5) several of the smuggled a lie n s saw firearms in the smugglers' possession. G o n z a le z -M e n d o z a 's objections to the PSR with respect to the See

e n h a n c e m e n t s were insufficient to rebut the information it contained.

U n ite d States v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998); United States v. V ita l, 68 F.3d 114, 120 (5th Cir. 1995). In light of the PSR, the trial court did n o t clearly err in finding that he harbored or transported at least 25, but fewer t h a n 99, illegal aliens as it was plausible that three loads of ten aliens had a r r iv e d during the ten days that Gonzalez-Mendoza admittedly participated in t h e conspiracy. In addition, the information contained in the PSR establishes t h a t Gonzalez-Mendoza's codefendants brandished a firearm--relevant conduct

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Case: 09-20700 Document: 00511301525 Page: 3 Date Filed: 11/22/2010 No. 09-20700 fo r which he is held responsible. See Cisneros-Gutierrez, 517 F.3d at 764; United S ta te s v. Williams, 610 F.3d 271, 292 (5th Cir. 2010); U.S.S.G. § 1B1.3(a)(1)(B). A F F IR M E D .

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