United States v. Contreras

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2009
No. 08-20529
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
AGUSTIN MAYA CONTRERAS,
Defendant–Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-94-6
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Agustin Maya Contreras (Contreras) appeals his 63-month sentence for his
guilty-plea conviction of conspiracy to transport and harbor aliens in violation
of 8 U.S.C. § 1324(a)(1)(A)(v)(I). Contreras argues that the district court clearly
erred in imposing a three-level increase to his offense level based on his role as
a manager or supervisor, pursuant to U.S.S.G. § 3B1.1(b).
A defendant’s base offense level may be increased three levels “[i]f the
defendant was a manager or supervisor (but not an organizer or leader) and the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-20529
criminal activity involved five or more participants or was otherwise extensive.”
§ 3B1.1(b). An enhancement under § 3B1.1 may be warranted if the defendant
managed the criminal organization’s property, assets, or activities. United
States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006); United States v. Lopez-Urbina,
434 F.3d 750, 767 (5th Cir. 2005).
Contreras does not contest that five or more participants were involved in
the conspiracy. We review the district court’s determination that Contreras was
a manager or supervisor under § 3B1.1(b) for clear error. Rose, 449 F.3d at 633.
A factual finding is not clearly erroneous if it is plausible in light of the entire
record. Id.
The district court noted that Contreras did not dispute that he was at the
drophouse, where smuggled aliens were held until payment was secured for their
release, “to help guard the aliens, to keep them in the stash house, and to
arrange for their food and basic needs.” The district court found that Contreras
was “responsible in a managerial and supervisory role for th[e] drophouse.” This
finding is supported by the presentence report (PSR) and the testimony at
sentencing that, as second in command, Contreras was in charge of the
drophouse when the head boss was not around and had custody and control of
the aliens, whose presence represented substantial monetary value to the
smugglers, and that Contreras had contacted others to come to the drophouse
to dispose of the body of an alien who had died there. The district court’s finding
that Contreras was a manager or supervisor is plausible in light of the record
and, thus, is not clearly erroneous.
AFFIRMED.
2