USA v. Jesus Contreras-Martinez
UNPUBLISHED OPINION FILED. [10-40730 Affirmed] Judge: CDK , Judge: HRD , Judge: JLD. Mandate pull date is 06/21/2011 for Appellant Jesus Carlos Contreras-Martinez [10-40730]
Case: 10-40730 Document: 00511492421 Page: 1 Date Filed: 05/31/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
May 31, 2011
Lyle W. Cayce
UNITED STATES OF AMERICA,
JESUS CARLOS CONTRERAS-MARTINEZ, also known as Carlos,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-209-1
Before KING, DeMOSS, and DENNIS, Circuit Judges.
Jesus Carlos Contreras-Martinez (Contreras) appeals the sentence
imposed following his guilty plea conviction for conspiracy to transport unlawful
aliens. Contreras argues that the district court erred by imposing a four-level
enhancement under U.S.S.G. § 3B1.1(a) based on the finding that he was an
organizer or leader of the offense. He contends that he merely rented the house
where the aliens were kept and possessed some ledgers regarding the aliens.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Case: 10-40730 Document: 00511492421 Page: 2 Date Filed: 05/31/2011
Contreras asserts that the Government conceded that another person, Arturo
Apac, was the leader of the organization.
Section 3B1.1(a) authorizes a four-level increase in a defendant’s offense
level “[i]f the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” We review the
district court’s determination that Contreras was an organizer or leader of the
offense for clear error. See United States v. Cabrera, 288 F.3d 163, 173 (5th Cir.
There may be more than one leader or organizer in a criminal
organization or conspiracy. United States v. Cooper, 274 F.3d 230, 247 (5th Cir.
2001). Thus, even if Apac was a leader, this does not preclude a finding that
Contreras also was a leader or organizer of the criminal activity.
Although Contreras argued before the district court that the Government
had not proven that there were five or more participants in the offense, he has
waived this issue on appeal by failing to brief it. See United States v. Whitfield,
590 F.3d 325, 346-47 (5th Cir. 2009), cert. denied, 131 S. Ct. 136 (2010). Even
assuming, arguendo, that he had raised this issue, it is without merit because
Contreras employed three to four other people in operating the stash house.
Because he and Apac also were participants in the criminal activity, it involved
five or more members. See Cooper, 274 F.3d at 247 (holding the defendant may
be one of the five participants in the offense).
Contreras admitted to renting and controlling the stash house, as well as
being paid $50 per person to provide shelter, transportation, and food for the
illegal aliens. The investigation revealed that he not only had his own alien
smuggling operation, but that he also housed aliens for other smuggling
operations and had been observed transporting aliens. Additionally, ledgers and
other evidence containing the names of smuggled aliens and directions for
making payments were found in Contreras’s possession. Contreras has not
disputed any of this information. Because the record evidence is sufficient to
show that he ran the stash house and recruited others to help him do so, he was
Case: 10-40730 Document: 00511492421 Page: 3 Date Filed: 05/31/2011
paid to house the aliens, he transported aliens, and he was involved in obtaining
the payments for the alien smuggling, the district court did not clearly err in
applying the organizer or leader enhancement. See Cabrera, 288 F.3d at 174-75
(holding that there was adequate evidence to support leadership enhancement
where defendants supplied children for an alien smuggling operation and they
recruited accomplices and organized others to carry out the crime).
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