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United States v. Arturo Rocha-Guajardo ( 2019 )


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  •      Case: 18-40667      Document: 00515020401         Page: 1    Date Filed: 07/03/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-40667                                 July 3, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARTURO ROCHA-GUAJARDO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:17-CR-1361-2
Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
Arturo Rocha-Guajardo appeals the sentence imposed following his
guilty plea conviction for conspiracy to transport aliens within the United
States.    Rocha-Guajardo        challenges     the    application      of     offense-level
enhancements for brandishing a dangerous weapon, bodily injury, and
detainment by coercion or threat. See U.S.S.G. § 2L1.1(b)(5)(B), (7)(A), (8)(A).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-40667     Document: 00515020401      Page: 2   Date Filed: 07/03/2019
No. 18-40667
We review the district court’s application of the Sentencing Guidelines
de novo and its factual findings for clear error. United States v. Jordan,
    851 F.3d 393
    , 399 (5th Cir. 2017). “A factual finding is not clearly erroneous if it is
plausible in light of the record as a whole.” United States v. Alaniz,
    726 F.3d 586
    , 618 (5th Cir. 2013) (quoting United States v. Johnston,
    127 F.3d 380
    , 403
(5th Cir. 1997)). “Ultimately, the district court need only determine its factual
findings at sentencing by a preponderance of the relevant and sufficiently
reliable evidence.”
    Id. at 618–19 
    (quoting United States v. Betancourt,
    422 F.3d 240
    , 247 (5th Cir. 2005)).
Rocha-Guajardo contends that there was insufficient evidence to support
the dangerous weapon, bodily injury, and detainment by coercion or threat
enhancements. He argues primarily that the presentence report (PSR) relied
on unreliable and uncorroborated hearsay evidence from material witnesses in
recommending the enhancements. According to the PSR, at least one material
witness stated that Rocha-Guajardo brandished a firearm while present at the
stash house; pistol whipped an undocumented alien, resulting in a bleeding
head wound; kicked and punched two individuals who attempted to escape the
stash house; and that a co-conspirator threatened, while holding a gun, to shoot
anyone who left the stash house without permission. The district court found
at the sentencing hearing that this information was sufficiently reliable.
Although Rocha-Guajardo denied brandishing a weapon or hurting or
threatening anyone, the district court implicitly found that he was not credible.
The district court “was in the best position to weigh the credibility of the
testimony” and “[w]e will not second guess” its credibility finding. United
States v. Garza,
    118 F.3d 278
    , 283 (5th Cir. 1997). Rocha-Guajardo did not
offer any other trustworthy evidence to establish that the statements in the
PSR were inaccurate or materially untrue. See United States v. Cervantes, 706
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Case: 18-40667    Document: 00515020401       Page: 3   Date Filed: 07/03/2019
No. 18-40667
F.3d 603, 620–21 (5th Cir. 2013). Accordingly, the district court’s factual
findings were plausible and not clearly erroneous.
Moreover, with respect to the detainment enhancement, the district
court appropriately held Rocha-Guajardo accountable for the actions of his co-
conspirator. These actions were in furtherance of, and reasonably foreseeable
in connection with, the jointly undertaken alien transporting offense. See
U.S.S.G. § 1B1.3(a)(1)(B) (2016). Rocha-Guajardo argues for the first time on
appeal that the district court failed to make particularized relevant conduct
findings. We perceive no error, plain or otherwise, in the district court’s
findings. See Puckett v. United States,
    556 U.S. 129
    , 135 (2009); United States
v. Carreon,
    11 F.3d 1225
    , 1236 (5th Cir. 1994).
The district court’s judgment is AFFIRMED.
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