United States v. Seferino Avila ( 2012 )

Case: 11-41254 Document: 00512043268 Page: 1 Date Filed: 11/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 5, 2012
No. 11-41254
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SEFERINO AVILA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-319-2
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Seferino Avila appeals the sentence imposed following his guilty plea
convictions for conspiracy to launder monetary instruments and possession with
intent to distribute 323 kilograms of cocaine. He argues that the district court
clearly erred in finding that he was a manager or supervisor and in imposing a
three-level increase in his offense level pursuant to U.S.S.G. § 3B1.1(b) and that
the Presentence Report (PSR) did not have sufficient or reliable information to
support the finding. He contends that because he objected to the enhancement,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41254 Document: 00512043268 Page: 2 Date Filed: 11/05/2012
No. 11-41254
the Government was required to present evidence supporting the enhancement,
but failed to do so. Avila asserts that his brother Alonzo micro-managed the
drug trafficking organization; Avila did not make decisions or control others; he
helped load and unload the cocaine; he did not recruit anyone; he did not receive
a larger share of the profits; and his knowledge of the enterprise was limited to
information he received from Alonzo.
Avila’s objection to the enhancement did not require the Government to
present additional evidence to support it. Because Avila did not provide any
rebuttal evidence to refute the information in the PSR or demonstrate that the
information was materially untrue, the district court was free to adopt the
information in the PSR as its findings without further inquiry or explanation.
See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). The PSR
provided that Avila directed or supervised the actions of his younger brother
Alejandro, Julio Leon, Darrell Hamilton, Ricky Saunders, and other unindicted
coconspirators at the direction of his brother Alonzo; that he supervised the
logistics of transporting the drugs, obtaining drivers, loading, unloading,
ensuring that the drugs arrived at the destination, collecting the drug proceeds,
and conducting counter surveillance. The factual basis, which Avila expressly
stated was true, also supported the sentencing enhancement. Because the
district court’s conclusion that Avila was a manager or supervisor is plausible
in light of the record as a whole, the district court did not clearly err in imposing
the three-level sentencing enhancement pursuant to § 3B1.1(b). See United
States v. Rose, 449 F.3d 627, 633-34 (5th Cir. 2006).
AFFIRMED.
2