United States v. Jose Flores-Avila ( 2019 )

Case: 19-40155 Document: 00515186570 Page: 1 Date Filed: 11/05/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40155 November 5, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE FLORES-AVILA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:18-CR-758-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Jose Flores-Avila appeals his 33-month sentence imposed for his alien
smuggling and illegal reentry convictions. He contends that the district court
erred by imposing a four-level enhancement under U.S.S.G. § 2L1.1(b)(4) for
harboring an unaccompanied minor.
We review the district court’s interpretation of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40155 Document: 00515186570 Page: 2 Date Filed: 11/05/2019
No. 19-40155
Williams, 610 F.3d 271, 292 (5th Cir. 2010). Flores-Avila argues that the
district court improperly applied a “strict liability” standard, rather than
considering whether it was reasonably foreseeable that a minor would be
involved in the offense. Because Flores-Avila did not challenge the
enhancement on this ground in the district court, plain error review applies.
See United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009).
Section 2L1.1(b)(4) does not include a knowledge requirement. And
Flores-Avila does not contest that he harbored undocumented immigrants,
including a 17-year-old, in his apartment. Because Flores-Avila’s relevant
conduct included all acts he committed, see U.S.S.G. § 1B1.3(a)(1)(A), the
district court did not commit error—plain or otherwise—in finding that Flores-
Avila harbored a minor regardless whether he knew the minor’s age.
The reasonably foreseeable standard applies to the acts of others
committed as part of jointly undertaken criminal activity, but no such standard
applies to acts committed by the defendant. § 1B1.3(a)(1). The enhancement
thus applied based on Flores-Avila’s own actions, not the actions of others.
There was no need for a foreseeability inquiry.
Finally, the district court did not err by adopting the presentence report’s
(PSR) finding that the minor was unaccompanied. Flores-Avila’s remarks
during sentencing that the minor was not alone because he was accompanied
by two people was insufficient to demonstrate, contrary to the PSR, that the
minor was accompanied by the minor’s parents, adult relative, or legal
guardian. See United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008);
United States v. Londono, 285 F.3d 348, 355 (5th Cir. 2002).
The judgment is AFFIRMED.
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