United States v. Jose Morales , 707 F. App'x 839 ( 2018 )

Case: 17-40114 Document: 00514294736 Page: 1 Date Filed: 01/04/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40114 FILED
Summary Calendar January 4, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE LUIS MORALES, also known as El Patron,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:16-CR-549-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jose Luis Morales appeals the 120-month sentence he received following
his guilty-plea conviction for conspiracy to illegally transport aliens in violation
of 8 U.S.C. § 1324. Morales argues that (i) the district court erred by enhancing
his sentence pursuant to (a) U.S.S.G. § 2L1.1(b)(2)(B) based on a finding that
he was accountable for transporting between 25 and 99 aliens and (b) U.S.S.G.
§ 2L1.1(b)(6) based on a finding that his offense involved a substantial risk of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40114
bodily injury and (ii) the district court’s denial of a three-level adjustment
pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility was without
foundation.
The calculation of the number of illegal aliens involved in an offense is a
finding of fact that we review for clear error. United States v. Williams, 610
F.3d 271, 292 (5th Cir. 2010). A factual finding that is plausible in light of the
record as a whole is not clearly erroneous and will be upheld. United States v.
Alaniz, 726 F.3d 586, 618 (5th Cir. 2013).
Our review of the record shows that the district court’s finding
concerning the number of aliens involved with Morales’s offense is plausible
and thus not clearly erroneous. See Alaniz, 726 F.3d at 618. The PSR’s
recitation of facts, which was not rebutted by Morales and which was adopted
by the district court, supports the disputed finding and shows that it is
plausible that the offense involved at least 25 aliens. See Alaniz, 726 F.3d at
618. Morales has not shown clear error in connection with the district court’s
finding concerning the number of aliens involved with his offense.
We also review the district court’s fact findings relative to the imposition
of a § 2L1.1(b)(6) enhancement for clear error. United States v. Rodriguez, 630
F.3d 377, 380 (5th Cir. 2011). The transportation of aliens in the trunk of a
vehicle is specifically listed in the comments to § 2L1.1(b)(6) as the type of
conduct contemplated by the Sentencing Commission in drafting the guideline
provision. § 2L1.1, comment. (n.3); see United States v. Mateo-Garza, 541 F.3d
290, 294 (5th Cir. 2008) (stating that transporting persons in a trunk or engine
compartment of a vehicle per se creates a substantial risk of serious injury or
death because those areas are not designed to hold human passengers).
Accordingly, the district court did not err by enhancing Morales’s sentence
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No. 17-40114
based on its finding that his offense involved transporting aliens in the trunk
of a vehicle.
We review a district court’s refusal to grant a reduction in an offense
level for acceptance of responsibility “with even greater deference” than clear
error review. United States v. Buchanan, 485 F.3d 274, 287 (5th Cir. 2007).
We will not reverse a denial of a reduction under § 3E.1.1 unless the decision
is “without foundation.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th
Cir. 2008).
In determining whether a reduction under § 3E1.1 applies, the district
court may consider the defendant’s “voluntary termination or withdrawal from
criminal conduct or associations.” § 3E1.1, comment. (n.1(B)); cf. United States
v. Watkins, 911 F.2d 983, 985 (5th Cir. 1990). The district court’s denial of a
§ 3E1.1 adjustment was not without foundation, as it was based on the district
court’s plausible finding that, after his arrest and while in custody, Morales
continued to engage in conduct in violation of law and prison rules when he set
fire to a mattress and blanket, possessed a shank and razor, and attempted to
start a second fire.
Accordingly, the judgment of the district court is AFFIRMED.
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