United States v. Villanueva-Alvarado , 291 F. App'x 683 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2008
No. 08-20035
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANA VILLANUEVA-ALVARADO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-179-2
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Ana Villanueva-Alvarado appeals the sentence imposed following her
guilty-plea conviction for conspiracy to transport and harbor undocumented
aliens for the purpose of financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)
and (B). She argues that the district court clearly erred in enhancing her offense
level pursuant to U.S.S.G. § 2L1.1(b)(5)(B) because one of her co-conspirators
brandished a weapon during the offense. She argues that she was unaware that
*
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should not be published and is not precedent except under the limited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.
No. 08-20035
any of her co-conspirators possessed a weapon and that it was not foreseeable to
her that one of them would brandish a weapon during the offense.
We review the district court’s application of the Sentencing Guidelines de
novo and its findings of fact for clear error. See United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Charon, 442 F.3d
881, 887 (5th Cir.), cert. denied, 127 S. Ct. 260 (2006). Although there was no
direct evidence that Villanueva-Alvarado knew one of her co-conspirators
possessed and brandished a weapon during the course of the offense, the
evidence supported the district court’s finding that the brandishing of a weapon
by one of her co-conspirators was reasonably foreseeable to her. Accordingly, the
district court did not clearly err when it enhanced Villanueva-Alvarado’s offense
level pursuant to § 2L1.1(b)(5)(B). Moreover, because Villanueva-Alvarado was
sentenced within the recommended guidelines range, her sentence is
presumptively reasonable. See Gall v. United States, 128 S. Ct. 586, 597 (2007);
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The district court’s
judgment is AFFIRMED.
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