USA v. Refugio Lopez

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USA v. Refugio Lopez

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 3, 2010 N o . 09-50500 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t iff - Appellee v. R E F U G I O LOPEZ, also known as Cuco D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Western District of Texas U S D C No. 2:07-CR-0974

B e fo r e KING, HIGGINBOTHAM, and GARZA, Circuit Judges. P E R CURIAM:* D e fe n d a n t ­ A p p e lla n t Refugio Lopez was tried and convicted in federal c o u r t of conspiring to transport aliens under 8 U.S.C. § 1324(a)(1)(A)(ii). He was s e n te n c e d to 70 months' imprisonment and three years' supervised release. He r a is e s several challenges to his conviction and sentence. We AFFIRM. I. Factual and Procedural Background R e fu g io Lopez, also known as "Cuco," was indicted on charges of conspiring t o transport or attempt to transport illegal aliens within the United States, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 09-50500 v io la t io n of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (B)(i). He was convicted by a jury in federal court and sentenced by the district court to 70 months' imprisonment, a t the low end of the United States Sentencing Guidelines range of 70 to 87 m o n th s . Lopez brought this timely appeal. At trial, the following evidence was offered. Guadalupe Montes owned a h o u s e in Big Wells, Texas, close to the U.S.­Mexico border, and illegal aliens w o u ld frequently come to her house and ask her for food and water and to use h e r telephone. In 2005, an alien using her phone handed it to her and Lopez was o n the line; Lopez asked Montes if he could bring trucks to her house to pick up t h e aliens and he offered her money. Montes began helping Lopez transport the a lie n s on a regular basis. Anthony Nunez, a mechanic, met Lopez in 2005 when Lopez asked him to r e p a ir a vehicle. After having Nunez repair a number of vehicles, Lopez

e v e n t u a lly began to trust Nunez and asked him if he would help transport illegal a lie n s . Lopez offered Nunez $100 for each alien he transported. Nunez agreed a t some point in 2006, and he began helping Lopez transport the aliens on a r e g u la r basis. Lisa Carter, Nunez's common law wife, also began working for L o p e z in 2007, after she was released from prison (on an unrelated charge). While she was in prison, Nunez had informed her that he was working for Lopez. The conspiracy generally operated as follows. Lopez would arrange for ille g a l aliens to cross the border to Montes's house. The aliens would be

t r a n s p o r t e d (sometimes by themselves, sometimes with the help of guides) to L o p e z 's house in San Antonio, where they would eat and bathe. If the aliens had n o t paid Lopez before crossing the border, they would arrange for friends or fa m ily members to wire money through Western Union; Lopez paid Montes, N u n e z , and Carter to pick up the wire transfers for him under their names at t h e rate of $50 per transfer. The payments ranged from approximately $1,500 t o $2,700 per person. Carter and Nunez both testified that they did not know 2

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No. 09-50500 t h e persons who wired the money and that the transfers were payments for alien s m u g g lin g . Once payment was finalized, Nunez (and sometimes Carter) would d r iv e the aliens to their final destinations (usually in the area of Austin, H o u s t o n , or Dallas). On March 11, 2007, Carter was arrested outside Big Wells. At the time o f her arrest, Carter was driving one of Lopez's pickup trucks, which held nine ille g a l aliens. Both Carter and Nunez cooperated with an investigation, and N u n e z gave permission to federal officers to tape record phone conversations b e tw e e n himself and Lopez, during which Lopez made incriminating statements a b o u t the conspiracy to transport aliens. A search of Lopez's house in San A n t o n io by ICE officials discovered piles of dirty clothing in all sizes, for both m e n and women, including little girls' shoes. Both Carter and Montes pled guilty to charges arising from the conspiracy. Carter, Montes and Nunez testified against Lopez at his trial, and all three id e n tifie d Lopez as having the nickname "Cuco." Carter testified that over the c o u r s e of three months, she personally was involved in transporting about 75 a lie n s . Nunez testified that he delivered groups of aliens (between 18 and 21 a lie n s ) about once a month between 2006 and 2007. As mentioned above, Lopez w a s convicted and sentenced to 70 months' imprisonment, and he brought this t im e ly appeal. II. Constructive Amendment L o p e z argues that the trial court improperly constructively amended the in d ic t m e n t by instructing the jury on aiding and abetting. Lopez was indicted s o le ly on principal liability under 8 U.S.C. § 1324; by instructing the jury on a id in g and abetting liability, he contends that the aiding and abetting in s t r u c t io n allowed the jury to convict him on a materially different theory or set o f facts than those originally charged.

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No. 09-50500 L o p e z concedes that, as he failed to object to the jury instruction at trial, p la in error review applies. See United States v. Olano, 507 U.S. 725, 736 (1993). "To establish plain error, an appellant must show a forfeited error that is clear o r obvious and that affected his substantial rights." United States v. Davis, 602 F .3 d 643, 647 (5th Cir. 2010). "Ordinarily, an error affects substantial rights o n ly if it `affected the outcome of the district court proceedings.'" Id. (quoting P u c k e tt v. United States, -- U.S. --, 129 S.Ct. 1423, 1429 (2009)). If this showing is made, "the court of appeals has the discretion to remedy the error--discretion w h i c h ought to be exercised only if the error `seriously affect[s] the fairness, in t e g r it y or public reputation of judicial proceedings.'" Puckett, 129 S.Ct. at 1429 (q u o tin g Olano, 507 U.S. at 736). Lopez was indicted under 8 U.S.C. § 1324(a)(1)(A)(v)(I), the conspiracy s u b s e c t io n of the alien smuggling statute, which "distinguishes for purposes of p u n is h m e n t between a principal and an aider and abettor." United States v. W illia m s (Williams I), 449 F.3d 635, 647 (5th Cir. 2006); 8 U.S.C. § 1324(a)(1)(B)(i), (ii) (describing statutory maximum sentences for principal lia b ilit y -- n o t more than ten years--and for aider and abettor liability--not more t h a n five years). Section 1324 is unique in this regard; under the general aiding a n d abetting code section, 18 U.S.C. § 2, a person who aids or abets is treated in t h e same manner as the principal for sentencing purposes. The verdict form s u b m it t e d to the jury was general and did not allow the jury to indicate whether it convicted Lopez as a principal or as an aider and abettor. The addition of the aiding and abetting instruction has implications under A p p r e n d i v. New Jersey, 530 U.S. 466 (2000), and United States v. Jones, 526 U .S . 227 (1999), as the statutory maximum sentence increases from five years (fo r aiding and abetting under 8 U.S.C. § 1324(a)(1)(B)(ii)) to ten years (for being a principal under 8 U.S.C. § 1324(a)(1)(B)(i)) without requiring a jury d e t e r m in a t io n of the facts required to increase the statutory maximum. See 4

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No. 09-50500 U n ite d States v. Hilario­Hilario, 529 F.3d 65, 75­77 (1st Cir. 2008) (discussing a similar claim). "The Fifth Amendment guarantees that a criminal defendant will be tried o n ly on charges alleged in a grand jury indictment." United States v. Threadgill, 1 7 2 F.3d 357, 370 (5th Cir. 1999) (internal quotation marks omitted); see also S tir o n e v. United States, 361 U.S. 212, 215­16 (1960) ("[A]fter an indictment has b e e n returned its charges may not be broadened through amendment except by t h e grand jury itself."). "A jury charge constructively amends an indictment, in v io la t io n of the Fifth Amendment, if it permits the jury to convict the defendant u p o n a factual basis that effectively modifies an essential element of the crime c h a r g e d ." United States v. Daniels, 252 F.3d 411, 413­14 (5th Cir. 2001)

(in t e r n a l quotation marks omitted). "That is, constructive amendment occurs if the jury is permitted to convict on an alternative basis permitted by the s t a t u t e but not charged in the indictment." Id. at 414 (internal quotation marks o m it t e d ). Ordinarily, a constructive amendment constitutes reversible error. United States v. Reasor, 418 F.3d 466, 475 (5th Cir. 2005). Assuming without deciding that the first three requirements for plain e r r o r review are met, we decline to exercise our discretion to correct any error in this case. Cf. Hilario­Hilario, 529 F.3d at 76 (stating, on plain error review o f a constructive amendment claim dealing with § 1324's aiding and abetting p r o v is io n , that "[i]t might be enough to negate [any] miscarriage [of justice] if the e v id e n c e were compelling and the jury likely . . . found [the defendant guilty as a principal," but deciding to exercise discretion in defendant's favor because the c o u r t had "no reason to think [the jury] convicted [the defendant] of the s u b s t a n t iv e offense of smuggling"). Unlike Hilario­Hilario, the record is clear t h a t the jury convicted Lopez as a principal, as the evidence against him was o v e r w h e lm in g . The government consistently presented the theory that Lopez w a s the leader of the conspiracy and asked the jury during closing arguments to 5

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No. 09-50500 r e t u r n a guilty verdict on the charge of conspiring to transport aliens. Montes, C a r t e r , and Nunez all consistently testified that Lopez recruited them into the c o n s p ir a c y and that Lopez was the one who paid them for participating. There w a s no evidence to support a conclusion that the jury found that Lopez was lia b le as an aider and abettor but not as a principal. In fact, the only time the t e r m "aiding and abetting" was used before the jury during the entire trial was w h e n the district court gave the disputed jury instruction. See United States v. P a r t i d a , 385 F.3d 546, 559 (5th Cir. 2004) (finding no plain error on review of c la im that jury instruction allowed jury to convict on un-indicted charge of a t t e m p t e d conspiracy, after considering that "neither the prosecution nor the d e fe n s e argued for a finding of attempted conspiracy, nor was evidence of a mere a t t e m p t placed before the jury" and noting the "overwhelming evidence of a fully fo r m e d conspiracy"). Allowing Lopez's conviction to stand does not "seriously a ffe c t [ ] the fairness, integrity or public reputation of judicial proceedings," P u c k e tt, 129 S.Ct. at 1429, and therefore we decline to exercise our discretion to c o r r e c t any error on this point. Lopez also complains of the general verdict form submitted to the jury. He c o n t e n d s that the general verdict form, in combination with the aiding and a b e t tin g instruction, allowed the jury to convict him of either conspiracy to t r a n s p o r t aliens or aiding and abetting a conspiracy to transport aliens. Lopez a r g u e s that had the verdict form allowed the jury to indicate which theory they c o n v ic t e d Lopez under, the Apprendi problem would be alleviated. Assuming w it h o u t deciding that an amended verdict form would have cured any Apprendi e r r o r , Lopez has waived this error. After reading the jury instruction, the d is t r ic t court realized that there was a potential problem with submitting the c a s e to the jury with the general verdict form. The district court stated: [I]t hit me as I was reading the instructions the government asked fo r an aiding and abetting charge. Do you want me to prepare a

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No. 09-50500 n e w verdict form that allows the jury to tell us on what theory they a r e relying for conviction, be it conspiracy or aiding and abetting? And the only reason I'm saying that is conspiracy is zero to 10 under t h e statute. When you combine the two theories I'm not so sure w h e t h e r it's zero to 10 or zero to five, because aiding and abetting is zero to five regardless of [a finding of] for [financial] gain. And it d id n 't hit me until I was reading the instruction. To find him guilty of aiding and abetting the conspiracy, w o u ld n 't that potentially be zero to five? . . . If you-all want to leave it generally as it is. Defense counsel responded: "We're fine the way it is, Your Honor." "Whereas forfeiture is the failure to make the timely assertion of a right, w a iv e r is the `intentional relinquishment or abandonment of a known right.'" Olano, 507 U.S. at 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). "Waiver is an `affirmative choice by the defendant to forego [sic] any remedy a v a ila b le to him.'" United States v. Phillips, 477 F.3d 215, 223 (5th Cir. 2007) (q u o tin g United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002)). The d is t r ic t court specifically brought the Apprendi problem to defense counsel's a t t e n tio n by warning of the discrepancies between the statutory maximum s e n te n c e s for the two crimes. Defense counsel specifically declined the

o p p o r t u n it y to submit a jury form that would have allowed the jury to d is t in g u is h between principal liability and aider and abettor liability. By

m a k i n g the affirmative choice to decline the district court's express offer to a m e n d the verdict form, Lopez intentionally relinquished a known right and, c o r r e s p o n d in g ly , waived any error as to the jury verdict form. We also note that, h a d the error not been waived, it likely would have been harmless error, as it is c le a r that Lopez was tried exclusively as a principal. III. Sufficiency of the Evidence L o p e z argues that the evidence was insufficient to support a conviction. Specifically, he contends that there was no credible evidence of an overt act

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No. 09-50500 c o m m it t e d in order to further the conspiracy, and that the government failed to p r o v e the "element" of alienage. On a challenge to the sufficiency of the evidence, "[w]e will affirm the d is t r ic t court `if a reasonable trier of fact could conclude that the elements of the o ffe n s e were established beyond a reasonable doubt.'" United States v. Percel, 5 5 3 F.3d 903, 910 (5th Cir. 2008) (quoting United States v. McDowell, 498 F.3d 3 0 8 , 312 (5th Cir. 2007)) (alteration omitted). In undertaking this review, we m u s t view the evidence in the light most favorable to the verdict and draw all r e a s o n a b le inferences from the evidence to support the verdict. Id. "[W]e apply a rule of reason, knowing that the jury may properly rely on their common sense a n d evaluate the facts in light of their knowledge and the natural tendencies and in c lin a t io n s of human beings." United States v. Holmes, 406 F.3d 337, 351 (5th C ir . 2005) (internal quotation marks omitted). Lopez argues that the government was required to prove an overt act t a k e n in furtherance of the conspiracy, but that the government failed to do so. The government responds that conspiracy under 8 U.S.C. § 1324(a)(1)(A)(v)(I) d o e s not require proof of an overt act, as the code section is silent as to the r e q u ir e m e n t of any overt act.1 In support of this proposition, the government
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The relevant statutory text reads: Any person who-- (i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien; [or] .... (v)(I) engages in any conspiracy to commit any of the preceding acts . . . .... shall be punished as provided in subparagraph (B).

8 U.S.C. § 1324(a)(1)(A).

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No. 09-50500 c it e s three Supreme Court cases where other similarly silent criminal code s e c t io n s were held not to require proof of an overt act. See Whitfield v. United S ta te s , 543 U.S. 209, 214 (2005) (proof of overt act not required under 18 U.S.C. § 1956(h) because "the text . . . does not expressly make the commission of an o v e r t act an element of the conspiracy offense"); Salinas v. United States, 522 U .S . 52, 63 (1997) (same as to 18 U.S.C. § 1962(d), RICO statute); United States v . Shabani, 513 U.S. 10, 11 (1994) (same as to 21 U.S.C. § 846, drug conspiracy s ta tu te ). The government's contention is perhaps correct in light of this

S u p r e m e Court precedent;2 however, we do not need to determine whether an o v e r t act is required, because the government did clearly establish that an overt a c t had been taken in furtherance of the agreement. All three co-conspirators testified to overt acts committed in furtherance o f the agreement, including that: aliens were guided to Montes's house in Big W e lls ; aliens would be transported from Big Wells to Lopez's house in San A n t o n io in tarp-covered trucks owned by Lopez; once at Lopez's house, the aliens w o u ld shower, eat, and make payment arrangements; the aliens' family m e m b e r s would wire payments through Western Union (registered under C a r t e r 's , Nunez's, and Montes's names); Carter and Nunez were paid $50 per

United States v. Avila­Dominguez, 610 F.2d 1266, 1271 (5th Cir. 1980), held that an overt act was required, and that case was followed in United States v. Valles­Zamora, 252 F. App'x 701, 704 (5th Cir. 2007) (per curiam). However, Avila­Dominguez was decided before the conspiracy provision was added to § 1324 in 1996; at the time of decision, offenses of conspiracy to violate § 1324 were charged under 18 U.S.C. § 371, the general conspiracy statute. Several other unpublished Fifth Circuit cases have required an overt act. See United States v. Aguirre, 354 F. App'x 916, 918 (5th Cir. 2009) (per curiam); United States v. Rodriguez, 353 F. App'x 890, 893 (5th Cir. 2009) (per curiam); United States v. Valerio­Santibanez, 81 F. App'x 836, 838 (5th Cir. 2003) (per curiam); United States v. Castro­Hernandez, 205 F.3d 1337, 1999 WL 1338382, at *3 (5th Cir. 1999) (per curiam) (unpublished table opinion). We have never directly addressed the impact of the 1996 amendment or of the subsequent Supreme Court decisions discussed above. However, we do not need to resolve this question today, as the record clearly shows that the government offered proof of more than one overt act taken by Lopez and his co-conspirators in furtherance of the agreement to transport aliens.

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No. 09-50500 w ir e transfer by Lopez; Carter testified she was involved in transporting around 7 5 aliens over the course of three months; and Carter was arrested while driving a truckload of aliens from Montes's house to Lopez's house. Lopez challenges his c o -c o n s p ir a t o r s ' testimony on credibility grounds; however, all credibility d e t e r m in a t io n s must be resolved in favor of the verdict. United States v. Majors, 3 2 8 F.3d 791, 796 (5th Cir. 2003) (per curiam). We may not entertain Lopez's c r e d ib ilit y -b a s e d challenges to the sufficiency of the evidence. A rational jury c o u ld have found beyond a reasonable doubt that Lopez conspired to transport ille g a l aliens. Lopez also contends that the government failed to prove that the offense i n v o lv e d illegal aliens. However, Lopez was charged with conspiracy to The

t r a n s p o r t aliens, not with the completed offense of alien smuggling.

g o v e r n m e n t did not need to prove that an alien actually "entered or remained in t h e United States in violation of the law." United States v. Nolasco­Rosas, 286 F .3 d 762, 765 (5th Cir. 2002) (per curiam) (discussing elements of completed o ffe n s e of alien smuggling). IV. Rule 403 Challenge L o p e z challenges the admission of a spreadsheet from Western Union s h o w in g two wire transfers.3 As an evidentiary ruling, this is subject to review

Lopez also argues that the district court erred in admitting a transcript of a recorded telephone call between "Cuco" and Nunez. The recording was entirely in Spanish; the transcript translates the recording into English. When indicating the speakers, the transcript substitutes "Lopez" (the defendant's last name) for "Cuco" (his nickname). Lopez contends that this substitution prevents the transcription for being an accurate, word-for-word translation of the recording. The district court admitted the transcript over Lopez's objection as an aid to the jury, not as substantive evidence, and gave a limiting instruction to this effect. However, Lopez has inadequately briefed this issue. He offers only one citation to case law dealing with translations. That single case, United States v. Valladares, 871 F.2d 1564 (11th Cir. 1989), involved a translator appointed to aid a non-English-speaking defendant to understand his trial proceedings. Lopez does not cite any case law dealing with the admissibility of tapes or transcripts. As a result, he has waived this argument. See United States v. Stalnaker, 571 F.3d 428, 439­40 (5th Cir. 2009) (holding that defendant's failure to provide citations to relevant case law constituted waiver for failure to adequately brief).

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No. 09-50500 u n d e r the highly deferential abuse of discretion standard. United States v. Rice, 6 0 7 F.3d 133, 138 (5th Cir. 2010). The spreadsheet shows fourteen wire

t r a n s fe r s . Twelve of the transfers were sent to Antonio Nunez, and two were s e n t to Lisa Carter. The amounts of the transfers on the spreadsheet varied fr o m $164.99 to $2,120, but most were around $1,500. Lopez raised an objection t o the spreadsheet at trial under Federal Rule of Evidence 403. After

conducting a Rule 403 balancing test on the record, the district court overruled t h e objection, concluding: the probative value outweighs the prejudicial effect. In this p a r t ic u la r case [the Western Union evidence] shows a relationship b e tw e e n the defendant and the co-[conspirators] that is something m o r e than just an acquaintanceship. It shows an agency of sorts w h ic h is the heart of the conspiracy, that they acted in conjunction w it h each other for the movement of the aliens. Granted there is not a specific element of "for financial gain" u n d e r conspiracy. [This evidence] however though can still be used a s evidence to show that there was an agency relationship there. Lopez argues on appeal that this ruling was an abuse of discretion.4 T h e spreadsheet was admitted during direct examination of Carter. Carter testified that she picked up the two wire transfers--one for $1,900 from E n r iq u e Blanco Rodriguez and one for $1,500 from Estefano Alfaro. Carter t e s t ifie d that she did not know the people sending the transfers; that she picked u p the transfers in her own name; that she received $50 for each transfer picked u p in her name; and that the transfers were intended as prepayment to Lopez f o r delivering the aliens to their destination. Montes and Nunez also testified t h a t Lopez paid them to pick up wire transfers in their names. As the district
4

Lopez also attempts to argue that the district court constructively amended the indictment by allowing evidence of the wire transfers, because the indictment did not allege that he joined the conspiracy for purposes of financial gain. However, Lopez, who is represented by appointed counsel, fails to adequately brief this point. He states the legal standard but offers no further arguments or explanation. Therefore, this argument is waived. See United States v. Reagan, 596 F.3d 251, 254­55 (5th Cir. 2010).

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No. 09-50500 c o u r t noted, the evidence was relevant to show the relationship between the d e fe n d a n t and his co-conspirators and to show the existence of an agreement b e tw e e n the co-conspirators. Lopez fails to show undue prejudice stemming from t h is evidence, and the district court did not abuse its discretion in allowing e v id e n c e of the Western Union transfers. V. Challenges to the Sentence Lopez challenges his sentence on two grounds: first, he contends that the d is t r ic t court improperly calculated his base offense level by relying on two improper factual findings; and second, he argues that his sentence was u n r e a s o n a b le given the disparity between his sentence (70 months) and his coc o n s p ir a t o r s ' sentences (24 months and 27 months). 1. Factual Findings W e review the district court's application of the United States Sentencing G u id e lin e s ("U.S.S.G." or the "Guidelines") de novo and its factual findings for c le a r error. United States v. Williams (Williams IV), -- F.3d --, 2010 WL 2 5 2 3 2 0 7 , at *14 (5th Cir. 2010). "A factual finding is clearly erroneous when a lt h o u g h there is evidence to support it, the reviewing court on the entire e v id e n c e is left with the definite and firm conviction that a mistake has been c o m m it t e d ." United States v. Castillo, 430 F.3d 230, 238 (5th Cir. 2005) (internal q u o t a t io n marks omitted). "A sentencing court's factual findings must be

s u p p o r t e d by a preponderance of the evidence." United States v. Chavez, 119 F .3 d 342, 349 (5th Cir. 1997) (per curiam). In determining Lopez's base offense level, the district court found that (1) t h e conspiracy involved the transportation of 100 or more illegal aliens under U .S .S .G . § 2L1.1(b)(2)(C) and (2) Lopez was "an organizer or leader of a criminal a c t iv it y that involved five or more participants" under U.S.S.G. § 3B1.1(a). Lopez objected to both factual findings at the sentencing hearing, and the d is t r ic t court overruled his objections. Accordingly, the district court assigned 12

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No. 09-50500 a nine-level enhancement under § 2L1.1(b)(2)(C) and a four-level enhancement u n d e r § 3B1.1(a), ultimately calculating a Guidelines range of 70 to 87 months. The district court sentenced Lopez to 70 months' imprisonment. As to the finding that the conspiracy involved more than 100 aliens, Lopez a r g u e s that the district court improperly relied on the Presentence Investigation R e p o r t (PSR), as the PSR allegedly conflicted with testimony given at trial about t h e number of aliens involved in the conspiracy. Specifically, he argues that M o n te s 's trial testimony conflicted with her statement to the probation officer, a n d that Carter testified only to being involved personally in the transportation o f 75 aliens. Section 2L1.1(b)(2) applies "`[i]f the offense involved the smuggling, t r a n s p o r t in g , or harboring of six or more unlawful aliens,'" Williams IV, 2010 W L 2523207, at *14 (quoting U.S.S.G. § 2L1.1(b)(2)(C)) and it "provides for d iffe r e n t level increases depending on the number of unlawful aliens smuggled, t r a n s p o r t e d , or harbored." Id. "[A] six-level enhancement applies if the number is 25 to 99, and a nine-level enhancement applies if the number is 100 or more." Id. (internal citations omitted). The district court did not clearly err in applying t h e nine-level enhancement. While it is true that Carter testified that she only s a w around 75 people who had been smuggled in, Carter specified this was only d u r in g a three-month period. Carter did not work for Lopez for as long as M o n te s and Nunez did. Montes testified that groups of fifteen to twenty aliens w o u ld come to her house about once a month during the time she worked for L o p e z (from 2005 to 2008). There was some uncertainty about exactly how many a l i e n s Montes helped Lopez transport, as Montes independently helped t r a n s p o r t aliens prior to her interactions with Lopez. Nunez testified that he t r a n s p o r t e d aliens on 12 or 13 occasions before Carter started working for Lopez, w it h approximately 18 to 21 people on each load. In addition, Nunez testified t h a t he transported an additional three loads of aliens after Carter began 13

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No. 09-50500 w o r k in g . The testimony of both Montes and Nunez supports the district court's fin d in g that more than 100 aliens were transported.5 Given the time period that C a r t e r was involved in the conspiracy, her testimony that 75 aliens were t r a n s p o r t e d does not make the district court's finding clearly erroneous. The n in e -le v e l enhancement under § 2L1.1(b)(2) was not improper. As to the finding that Lopez played a leadership role in the conspiracy, L o p e z argues that there is no support for the district court's finding that the c o n s p ir a c y involved five participants.6 He concedes that there were four

p a rticip a n ts in the conspiracy--himself, Carter, Nunez, and Montes--but argues t h a t no one else was involved. Under § 3B1.1(a), a four-level enhancement is a p p r o p r ia te "[i]f the defendant was an organizer or leader of a criminal activity t h a t involved five or more participants or was otherwise extensive." The

c o m m e n ts to the Guidelines define a "participant" as "a person who is criminally r e s p o n s ib le for the commission of the offense, but need not have been convicted. A person who is not criminally responsible for the commission of the offense (e.g., a n undercover law enforcement officer) is not a participant." U.S.S.G. § 3B1.1 c m t . n.1. The sentencing court may count the defendant as one participant. United States v. Barbontin, 907 F.2d 1494, 1498 (5th Cir. 1990). At trial, Carter testified that on the day she was arrested, she was working w it h Nunez, Montes, Sandra Campos (Lopez's girlfriend), Rosalinda Quintero (a ls o referred to in the record as Rosalina Garza­Quintero and as Rosalinda G a r z a ), and two of Montes's nephews. Nunez testified that Lopez's brother h e lp e d deliver aliens to their destinations on at least one occasion. Nunez also t e s t ifie d that Sandra Campos was involved in one specific trip with him and that

The district court did not rely on the PSR's finding that 459 aliens were transported, but rather calculated independently that more than 100 aliens were transported. Lopez does not contest the finding that he did, in fact, play a leadership role in the conspiracy.
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No. 09-50500 h e split his payment for that trip with her. In addition to this information d e t a ile d at trial, the PSR added that Lopez's brother, Armando, had transported fo u r aliens to Lopez's house.7 Given this evidence, adduced both at trial and in t h e PSR, the trial court was not clearly erroneous in concluding that five or more in d iv id u a ls were involved in the conspiracy to transport aliens. The four-level e n h a n c e m e n t under § 3B1.1(a) was not improper. 2. Reasonableness of Sentence W e consider the substantive reasonableness of a Guidelines sentence u n d e r an abuse of discretion standard. United States v. Rodriguez, 523 F.3d 519, 5 2 5 (5th Cir. 2008). A Guidelines sentence is entitled to a presumption of r e a s o n a b le n e s s . Id. Lopez complains that the district court did not consider the s e n te n c in g factors listed in 18 U.S.C. § 3553(a)--specifically, that Lopez's 70m o n th sentence was an "unwarranted . . . disparit[y]" under § 3553(a)(6) from M o n te s 's and Carter's sentences (27 and 24 months, respectively). It is true that if a similarly situated defendant receives a lesser sentence, a defendant may be able to establish substantive unreasonableness based on an u n w a r r a n t e d disparity in sentences. See United States v. Armstrong, 550 F.3d 3 8 2 , 406 (5th Cir. 2008). Here, as the district court noted in response to Lopez's o b je c t io n at sentencing, Lopez was not similarly situated with Montes and C a r t e r for several reasons. Lopez insisted on taking the case to a jury trial, w h ile Montes and Carter pled guilty and testified for the government, thereby r e c e iv in g downward departures for acceptance of responsibility and substantial a s s is t a n c e to authorities. See United States v. Duncan, 919 F.2d 981, 992 (5th

The PSR is "considered reliable and may be considered as evidence by the trial judge when making sentencing determinations." United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995) (citing United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992)). "Furthermore, if no relevant affidavits or other evidence is submitted to rebut the information contained in the PSR, the court is free to adopt its findings without further inquiry or explanation." Id.; accord United States v. Cabrera, 288 F.3d 163, 173­74 (5th Cir. 2002) (per curiam).

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No. 09-50500 C ir . 1990) ("Defendants who enter into plea bargains agree to cooperate with the g o v e r n m e n t in exchange for a known result that they consider favorable. They a r e in an entirely different position from those who submit their cases to a jury a n d take their chances on the jury's decisions."). As discussed above, Lopez r e c e iv e d 13 total levels in enhancement for his role as leader or organizer and fo r having transported over 100 aliens--enhancements that Montes and Carter d id not receive. Lopez argues that because he did not have a criminal history, w h ile both Carter and Montes did, his sentence should have been closer to th e ir s . However, the district court was entirely within its discretion in

d e t e r m in in g that Lopez was not similarly situated with Montes and Carter. See U n ite d States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006) (according "great d e fe r e n c e " to within-Guidelines sentence). Therefore, the disparity between s e n te n c e s was not unwarranted, the district court did not abuse its discretion, a n d Lopez's sentence is not substantively unreasonable. VI. Conclusion F o r the reasons discussed above, we AFFIRM Lopez's conviction and s e n te n ce . AFFIRMED.

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