United States v. Chaires ( 2021 )

Case: 20-40465 Document: 00515886270 Page: 1 Date Filed: 06/03/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 3, 2021
No. 20-40465 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Alejandro Chaires,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:19-CR-2438-3
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Jose Alejandro Chaires appeals his convictions and within-guidelines
range sentences for one count of conspiracy to conceal, harbor, or shield
illegal aliens within the United States and three counts of concealing,
harboring, or shielding illegal aliens within the United States.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40465 Document: 00515886270 Page: 2 Date Filed: 06/03/2021
No. 20-40465
In his first issue, Chaires argues that his trial counsel was ineffective
because counsel (1) convinced him to plead guilty even though he is innocent,
(2) did not fully explain his constitutional rights to him, (3) did not file written
objections to the presentence report (PSR), and (4) should have negotiated
and obtained a written plea agreement. He did not raise these claims in the
district court, and the record is not sufficiently developed to allow the court
to consider them. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
Accordingly, we decline to consider these claims without prejudice to
Chaires’s right to raise them in a 28 U.S.C. § 2255 motion. See id.Next, Chaires argues that the district court erred in applying a four-
level enhancement under U.S.S.G. § 2L1.1(b)(5)(B) based on its finding that
his coconspirators brandished a firearm during the offense. Here, the PSR
provided that, at the time of Chaires’s arrest, agents found a loaded firearm
with eight rounds of ammunition in the magazine inside the stash house.
According to three material witnesses, two of Chaires’s coconspirators
possessed a firearm and used the firearm to intimidate them. Chaires did not
present any evidence to rebut the facts in the PSR, and the district court was
therefore entitled to rely on those facts to make its sentencing
determinations. See United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013).
Given the information contained in the PSR, the district court did not clearly
err in finding that it was reasonably foreseeable to Chaires that his
coconspirators would use and brandish a firearm. See United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764-65 (5th Cir. 2008); U.S.S.G.
§ 1B1.3(a)(1)(B).
AFFIRMED.
2