United States v. Genaro Gomez , 488 F. App'x 854 ( 2012 )

Case: 11-41379 Document: 00511987928 Page: 1 Date Filed: 09/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 14, 2012
No. 11-41379
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GENARO GOMEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-1156-5
Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Genaro Gomez pleaded guilty to conspiring to harbor illegal aliens in
violation of 8 U.S.C. § 1324, and he received the statutory maximum 120-month
sentence. On appeal, he challenges the district court’s denial of a downward
adjustment for acceptance of responsibility, and he argues that the district court
erred by enhancing his sentence based the deaths of two aliens and a member
of the conspiracy and on his role in the offense.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41379 Document: 00511987928 Page: 2 Date Filed: 09/14/2012
No. 11-41379
Gomez asserts that the sentencing court did not allow him an allocution,
thereby depriving him of an opportunity to accept responsibility. This assertion
is unsupported by the record as the court fully accorded Gomez his right of
allocution. The court denied an adjustment for acceptance of responsibility
because, after pleading guilty, Gomez denied his involvement in the offense until
the eve of sentencing. He has not shown that the district court’s denial of a
reduction for acceptance of responsibility is without foundation. United States
v. Thomas, 120 F.3d 564, 574-75 (5th Cir. 1997).
The sentencing court made exhaustive factual findings in support of its
determination that the three deaths were reasonably foreseeable. Specifically,
the court found that all members of the conspiracy knew that the aliens were to
be trekked on foot through the brush in the middle of summer. The trip was
intended to take two or three days, which in itself presented danger, but it was
foreseeable that they could be stranded in the brush for a longer period. Because
the aliens were required to travel through the brush in “extremely hot” weather
without sufficient food or water, the court further found it reasonably foreseeable
that members of the party might go in search of help, find a rural road and
collapse out of exhaustion, and be struck and killed by a motorist who did not see
them.
These findings are plausible in light of the record as a whole, and they
certainly do not give rise to a “firm and definite conviction” that the sentencing
court was mistaken. See United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir.
2011); United States v. De Jesus-Ojeda, 515 F.3d 434, 442 (5th Cir. 2008). We
likewise find no clear error in the assessment of a sentence enhancement based
on Gomez’s role in the offense. See United States v. Caldwell, 448 F.3d 287, 290
(5th Cir. 2006).
AFFIRMED.
2