United States v. Jose Tobias

Case: 13-40275 Document: 00512484453 Page: 1 Date Filed: 12/30/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40275
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 30, 2013
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE LUIS TOBIAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-1685-3
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Jose Luis Tobias appeals the five 30-month
concurrent terms of imprisonment imposed following his conviction for
conspiracy to harbor aliens within the United States, harboring aliens within
the United States, and conspiracy to transport aliens within the United States
by means of a motor vehicle. See 8 U.S.C. § 1324(a)(1)(A) and (a)(1)(B). We
affirm.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40275 Document: 00512484453 Page: 2 Date Filed: 12/30/2013
No. 13-40275
We reject Tobias’s claim that the district court misinterpreted the
Sentencing Guidelines and caused it to fail to assign him a three-level
reduction in his offense level for not transporting or harboring the aliens for
profit. See U.S.S.G. § 2L1.1(b)(1)(A). That Guideline does not permit a
reduction unless the offense was committed other than for profit. Although the
jury made no profit-motive findings with regard to the conspiracy offenses, the
presentence report demonstrates that they were committed for profit. A
district court may rely on any factual information in the presentence report
that has a minimum indicium of reliability. United States v. Shipley, 963 F.2d
56, 59 (5th Cir. 1992). As the offense was not committed other than for
financial gain, the district court did not err and Tobias is not entitled to a
reduction under § 2L1.1(b)(1)(A). See United States v. Caldwell, 448 F.3d 287,
290 (5th Cir. 2006); United States v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir.
1989).
AFFIRMED.
2