United States v. Cabrera

Revised June 6, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-20497
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
NOBELDA CABRERA
Defendant - Appellant
_____________________
No. 01-20501
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LEDA CABRERA
Defendant - Appellant
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
April 3, 2002
Before KING, Chief Judge, and GARWOOD and HIGGINBOTHAM, Circuit
Judges.
PER CURIAM:
Defendants-Appellants Nobelda and Leda Cabrera were
convicted under 18 U.S.C. § 371 (1994) of conspiracy to encourage
or induce illegal immigrants to come to, enter, or reside in the
United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv)
(1994). In this consolidated appeal, Nobelda and Leda Cabrera
urge this court to vacate their sentences and remand for
resentencing on the ground that the district court committed
three errors in calculating the total offense levels on which
their sentences are based. They argue that the district court
improperly (1) increased their offense levels based on the
erroneous finding that the offense involved the smuggling of
twenty-five or more illegal immigrants into the United States,
(2) increased their offense levels based on the erroneous finding
that Nobelda and Leda Cabrera acted as leaders or organizers in
the conspiracy, and (3) refused to reduce their offense levels
for acceptance of responsibility. For the following reasons, we
conclude that the district court’s findings on these three issues
are not clearly erroneous, and thus we AFFIRM Nobelda and Leda
Cabrera’s sentences.
I. FACTUAL AND PROCEDURAL BACKGROUND
Nobelda and Leda Cabrera (“Nobelda” and “Leda”) were among
six defendants charged in a single indictment with violating 18
U.S.C. § 371 by conspiring “to commit an offense against the
United States, that is, encouraging and inducing aliens to come
2
to, enter and reside in the United States” in violation of 8
U.S.C. § 1324(a)(1)(A)(iv). The indictment alleged that Nobelda
and Leda were part of an operation that assisted individuals in
illegally entering the United States from Mexico by paying
parents to permit their children to accompany immigrants across
the border. The children provided a measure of security for
illegal immigrants attempting to enter the United States because
the U.S. Border Patrol had a policy of returning families with
young children to Mexico rather than detaining them and charging
them with illegal entry.
Both Nobelda and Leda pled guilty, preserving their right to
appeal their sentences. The factual basis proffered by the
government in support of their pleas at their rearraignment was
derived from an investigation conducted by the Immigration and
Naturalization Service (“INS”).1 Regarding Nobelda, the
government stated that two couples had told INS agents that the
couples had been paid to give their young daughters to Nobelda
and Juan Ramon Rodriguez (Nobelda’s husband and co-defendant) so
that undocumented immigrants could pose as the children’s parents
while crossing the United States-Mexico border. With respect to
Leda, the government asserted that she “assisted in the
conspiracy by . . . going to Western Union in order to pick up
money that had been wired as payments for the smuggling fee” and
1
Nobelda and Leda pled not guilty at their initial
arraignment.
3
by taking “phone messages[] on behalf of Nobelda Cabrera
regarding the smuggling activity.” Both Nobelda and Leda
admitted to this conduct before entering their guilty pleas.
At their sentencing hearing,2 Nobelda and Leda presented
arguments to the district court in support of their previously-
filed written objections to the findings made by the probation
officer in their presentence reports (“PSRs”). Nobelda and Leda
agreed that their PSRs properly (1) assigned each of them a base
offense level of 12 pursuant to subsections 2X1.1(a) and
2L1.1(a)(2) of the U.S. Sentencing Guidelines (“Sentencing
Guidelines”),3 and (2) increased their offense levels by two
because of the involvement of minors in the offense.4 However,
they objected to the following three steps in the calculation of
the total offense levels set out in their PSRs. First, Nobelda
and Leda objected to the six-level increase based on the PSRs’
finding that the offense involved the smuggling of between
2
At Nobelda and Leda’s attorneys’ suggestion, the district
court conducted one sentencing hearing for both Nobelda and Leda.
3
Section 2X1.1, the guideline that governs sentencing for
conspiracy offenses, mandates the use of the base offense level
in the guideline for the substantive offense. U.S. SENTENCING
GUIDELINES MANUAL § 2X1.1(a) (2000). Section 2L1.1, the guideline
applicable to violations of 8 U.S.C. § 1324(a) (the substantive
offense in the instant case), prescribes a base offense level of
12. Id. § 2L1.1(a)(2).
4
See U.S. SENTENCING GUIDELINES MANUAL § 3B1.4 (2000) (“If the
defendant used or attempted to use a person less than eighteen
years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense, increase by 2
levels.”).
4
twenty-five and ninety-nine illegal immigrants into the United
States. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.1(b)(2)(B) (2000)
(providing that “[i]f the offense involved the smuggling,
transporting, or harboring of [twenty-five to ninety-nine]
unlawful aliens,” then “add 6” to the base offense level).
According to the PSRs, the INS investigation revealed that thirty
illegal immigrants were smuggled into the United States in the
course of the conspiracy. At the sentencing hearing, the
government called upon INS Agent Elizar Paredes to explain the
basis of this finding in the PSRs. Paredes testified that two
couples and one woman admitted to “renting out their [children]”
for use in the smuggling operation on a combined total of
“approximately 15 occasions.” Paredes explained that the INS
“made the assumption that [the defendants] were bringing in
couples” with each child, in which case the number of illegal
immigrants smuggled would be thirty (i.e., two illegal immigrants
on each of the fifteen occasions in which the parents permitted
their children to be used in the smuggling operation). Paredes
further stated that “the preponderance of the evidence” supported
the assumption that two illegal immigrants had been smuggled on
each occasion because “the whole purpose was to have the smuggled
aliens pose as a family unit,” and thus “[t]hey would need a
father and mother.” However, Paredes acknowledged that “on one
occasion [we did] find that only one person used the child[,]
[s]o that would be . . . 29 persons [were smuggled].”
5
Nobelda and Leda argued that the fact that only one person
had taken a child on one of the smuggling trips rendered the
assumption that two persons were smuggled on the other trips too
speculative to justify the six-level increase for an offense
involving the smuggling of twenty-five or more illegal
immigrants. According to Nobelda and Leda, at most, the evidence
established that the offense involved the smuggling of between
six and twenty-four illegal immigrants, justifying an offense-
level increase of only three. See U.S. SENTENCING GUIDELINES MANUAL
§ 2L1.1(b)(2)(A) (2000). Concluding that a preponderance of the
evidence supported the PSRs’ finding that the offense involved
the smuggling of twenty-five or more illegal immigrants, the
district court denied Nobelda and Leda’s objection and adopted
this finding.
After increasing Nobelda and Leda’s offense level by six
based on the number-of-immigrants finding, the probation officer
arrived at the total offense level of 24 after applying a four-
level increase based on his determination that Nobelda and Leda
played “organizer or leader” roles in the offense. Id.
§ 3B1.1(a) (“If the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive, increase [the offense level] by 4 levels.”).
Finally, the probation officer found that Nobelda and Leda had
not adequately accepted responsibility for the offense to warrant
a decrease in their offense levels. See id. § 3E1.1(a). Nobelda
6
and Leda objected to both of these findings, arguing (1) that
there was insufficient evidence that they had exercised the sort
of authority that would justify a leader/organizer finding, and
(2) that they were entitled to three-level decreases in their
offense levels because their guilty pleas, colloquies, and
previous interactions with investigating officers demonstrated
that they had sufficiently accepted responsibility for their
roles in the offense. The district court denied both objections
and adopted the PSRs’ findings without qualification.
Factoring in their criminal history categories, the district
court determined that Nobelda and Leda were each subject to a
range of 57 to 60 months’ imprisonment.5 The district court
imposed a prison sentence of 60 months on both Nobelda and Leda,
5
Nobelda was assigned a criminal history category of II,
and Leda was assigned a category of I. With total offense levels
of 24, the applicable guideline ranges were 57 to 71 months’
imprisonment for Nobelda and 51 to 63 months’ imprisonment for
Leda. See U.S. SENTENCING GUIDELINES MANUAL § 5A (2000). However,
given that the statutory maximum prescribed by the statute of
conviction (i.e., 18 U.S.C. § 371) is five years, Nobelda was
subject to a range of 57 to 60 months and Leda to a range of 51
to 60 months. See id. § 5G1.1(c)(1). Apparently in error, the
district court stated —— both at the sentencing hearing and in
the final judgment —— that the range applicable to Leda was 57 to
60 months, rather than 51 to 60 months. (The probation officer
also incorrectly determined in Leda’s PSR that she was subject to
the same imprisonment range as Nobelda.) Leda did not challenge
the determination of her guideline range in the district court,
and she has not raised the issue in this appeal. In any event,
given the district court’s decision that the purposes of the
Sentencing Guidelines would be best served by imposing the
maximum sentence of 60 months on both Nobelda and Leda, it is
clear that the court’s error in determining Leda’s guideline
range is harmless.
7
explaining that “[t]hey used multiple children, little babies, to
do this, so certainly I believe that a sentence of both these
women at the high end of the guideline range is appropriate.”
The court further sentenced Nobelda and Leda to three years’
supervised release and ordered them to pay a special assessment
of $100.
Nobelda and Leda timely appealed their sentences,
reasserting the three challenges that they made in the district
court.
II. STANDARD OF REVIEW
To succeed in an appeal of a sentence imposed pursuant to
the Sentencing Guidelines, a defendant must demonstrate that the
sentence was imposed in violation of the law, was a result of an
incorrect application of the relevant guidelines, or is greater
than the applicable guideline range and was unreasonable. 18
U.S.C. § 3742(a) (1994); see also United States v. Cho, 136 F.3d
982, 984 (5th Cir. 1998). This court reviews a district court’s
legal interpretation and application of the sentencing guidelines
de novo and its factual findings for clear error. United States
v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998). “[G]iv[ing] due
regard to the opportunity of the district court to judge the
credibility of the witnesses,” 18 U.S.C. § 3742(e), we will deem
the district court’s factual findings clearly erroneous only if,
based “on the entire evidence,” we are “left with the definite
8
and firm conviction that a mistake has been committed.” United
States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001) (citation
omitted).
III. THE INCREASE BASED ON THE FINDING OF THE NUMBER OF ILLEGAL
IMMIGRANTS SMUGGLED
Section 2X1.1 is the guideline that applies to conspiracy,
attempt, and solicitation offenses that are not expressly covered
by the guideline for the “substantive offense,” i.e., “the
offense that the defendant was convicted of soliciting,
attempting, or conspiring to commit.” U.S. SENTENCING GUIDELINES
MANUAL § 2X1.1(c)(1), cmt. n.2 (2000). The conspiracy offense of
which Nobelda and Leda were convicted, i.e., conspiracy to
violate 8 U.S.C. § 1324(a)(1)(A)(iv) by encouraging or inducing
illegal immigrants to come to, enter, or reside in the United
States, is not expressly covered by a specific offense guideline.
See id. § 2X1.1 cmt. n.1 (providing a list of the offense
guidelines that expressly cover conspiracies, which list does not
include section 2L1.1, the guideline for § 1324(a) offenses).
Section 2X1.1(a) directs the sentencing court to use the base
offense level from the guideline for the substantive offense and
to apply “any adjustments from [that] guideline for any intended
offense conduct that can be established with reasonable
certainty.” Id. § 2X1.1(a). Such “adjustments” are offense-
level increases or decreases that are required where certain
“specific offense characteristics, cross references, [or] special
9
instructions contained in the particular guideline” apply. Id.
§ 1B1.1(b). Accordingly, in the instant case, the district court
set Nobelda and Leda’s base offense level at 12, as required
under section 2L1.1. See id. § 2L1.1(a)(2). The district court
then increased the base offense level by six based on that
court’s determination that one of the specific offense
characteristics enumerated in section 2L1.1 had been established
by a preponderance of the evidence, namely, that the “offense
involved the smuggling, transporting, or harboring of [twenty-
five to ninety-nine] unlawful aliens.” Id. § 2L1.1 (b)(2)(B).
Nobelda and Leda argue that the district court’s number-of-
immigrants finding is clearly erroneous because the government
failed to adduce evidence sufficient under subsection 2X1.1(a)’s
“reasonable certainty” standard to support that finding. In
support of this argument, Nobelda and Leda analogize the instant
case to United States v. Rome, 207 F.3d 251 (5th Cir. 2000), in
which this court vacated the defendant’s sentence for conspiracy
to steal firearms after determining that the district court’s
finding that the defendant intended to steal over fifty firearms
had not been established with the “reasonable certainty” required
by subsection 2X1.1(a). Id. at 252, 256. In particular, Nobelda
and Leda point out that in Rome this court relied on the
statement in section 2X1.1’s commentary that “[s]peculative
specific offense characteristics will not be applied,” id. at 254
(quoting U.S. SENTENCING GUIDELINES MANUAL § 2X1.1 cmt. n.2) (emphasis
10
omitted), thus rejecting as too speculative the district court’s
finding that the defendant must have intended to steal all the
guns that were in the store that he attempted to rob merely
because they were in the store, id. at 256 (noting that the
district court’s finding on the number of guns “is the type of
speculative inference the sentencing guideline comments
specifically disapprove”). According to Nobelda and Leda, like
the district court’s inference regarding the number of guns in
Rome, the district court’s inference in the instant case that two
immigrants must have been smuggled on all but one of the fifteen
occasions in question is too speculative to satisfy the
reasonable-certainty standard.
The government responds that Rome is inapposite to the
instant case because the reasonable-certainty standard of
subsection 2X1.1(a) is applicable only to conduct that was
allegedly intended to occur, not to conduct that allegedly did
occur, such as the smuggling of immigrants at issue in the
instant case. Thus, the government contends, the district court
properly applied the preponderance-of-the-evidence standard, and
that court’s finding that the smuggling of twenty-five or more
illegal immigrants had been established by a preponderance of the
evidence was not clearly erroneous.
We conclude that the government is correct that subsection
2X1.1(a)’s reasonable-certainty standard is specific to findings
of intended conduct. As noted above, subsection 2X1.1(a)
11
provides that for a conspiracy offense not expressly covered in
another guideline, the sentencing court must apply the base
offense level in the guideline for the substantive offense “plus
any adjustments from such guideline for any intended offense
conduct that can be established with reasonable certainty.” Id.
§ 2X1.1(a) (emphasis added). The government correctly notes that
the commentary to section 2X1.1 further clarifies the
intended/actual distinction by noting that the sentencing court
is to begin with the base offense level in the guideline for the
substantive offense and then apply the appropriate adjustments
triggered by any intended offense conduct that is established
with reasonable certainty (conduct “specifically intended”) or by
actual offense conduct. U.S. SENTENCING GUIDELINES MANUAL § 2X1.1
cmt. n.2 (2000).6 Indeed, it makes sense that the Sentencing
Commission would specifically direct the sentencing court to
apply “any adjustments . . . for any intended offense conduct
that can be established with reasonable certainty” because
“[u]nless otherwise specified,” the Sentencing Guidelines’
definition of the “relevant conduct” that may be considered in
6
The commentary states:
Under § 2X1.1(a), the base offense level will be the same
as that for the substantive offense. But the only
specific offense characteristics from the guideline for
the substantive offense that apply are those that are
determined to have been specifically intended or actually
occurred.
U.S. SENTENCING GUIDELINES MANUAL § 2X1.1 cmt. n.2 (2000) (emphasis
added).
12
determining whether a given adjustment applies is limited to
conduct that has occurred. Id. § 1B1.3(a)(1). As the government
points out, the district court based the six-level increase on
its finding that the conspiracy offense involved the actual
smuggling —— not the intended smuggling —— of twenty-five or more
immigrants.7
We note that our conclusion that the reasonable-certainty
standard governs findings of intended conduct only does not mean
that we are not guided in our review by the admonition in section
2X1.1’s commentary emphasized by Nobelda and Leda —— i.e., that
“[s]peculative specific offense characteristics will not be
applied.” That admonition is just as pertinent where the basis
for a specific offense characteristic is actual offense conduct
as where that basis is intended offense conduct. Although
preserving the sentencing court’s traditional authority to
consider any “relevant information without regard to its
admissibility under the rules of evidence at trial,” the
Sentencing Guidelines require that any information used by the
court in sentencing a defendant have “sufficient indicia of
reliability to support its probable accuracy.” Id. § 6A1.3(a),
§ 6A1.3 cmt. This court has interpreted subsection 6A1.3(a)’s
7
In asserting that the reasonable-certainty standard
applies to the district court’s number-of-immigrants finding,
Nobelda and Leda neither address subsection 2X1.1(a)’s reference
to “intended” (but not “actual”) offense conduct nor argue that
the district court’s finding was one of intended conduct.
13
“sufficient indicia of reliability” language “to require that the
facts used by the district court for sentencing purposes be
reasonably reliable.” United States v. Rogers, 1 F.3d 341, 343-
44 (5th Cir. 1993).
According to the PSRs, INS agents were aware of the number
of immigrants smuggled on three of the fifteen trips in question.
On two of the trips, U.S. Border Patrol officers apprehended two
immigrants posing as the mother and father of a young child, and
on the other trip, officers apprehended one immigrant posing as a
child’s father. Although the PSRs’ account of the INS
investigation noted that only one illegal immigrant entered the
United States on one of the trips, the PSRs assumed that two
immigrants were smuggled on each occasion in determining that
Nobelda and Leda’s offense involved the smuggling of thirty
immigrants. Paredes testified that notwithstanding the
undisputed fact that only one immigrant was smuggled on at least
one occasion, he believed that the multiplier estimate should be
two immigrants (rather than one) per trip because (1) “the whole
purpose was to have the smuggled aliens pose as a family unit, so
. . . [t]hey would need a father and mother,” and (2) the parents
were told that immigrants would pose as the children’s “parents,”
not “parent.”
The district court agreed with the government that it had
established by a preponderance of the evidence that twenty-nine
immigrants were smuggled, reasoning that “it would seem to me to
14
be counter-intuitive that every single one of these [trips] would
[involve] one person, since the whole point was to have a
family.” While Nobelda and Leda acknowledge that the information
in their PSRs supports a finding that their offense involved the
smuggling of between six and twenty-four immigrants (which would
subject them to an offense-level increase of three, rather than
six), they argue that Paredes’s testimony and the PSRs do not
provide an adequate evidentiary basis for the inference that two
immigrants were smuggled on each of the other twelve trips for
which the number of immigrants was not known. Nobelda and Leda
further contend that the two-per-trip inference is also rendered
unreliable by the undisputed fact that only one immigrant posed
as a child’s parent on one of the fifteen trips.
We are unable to find any published decisions, either from
this court or our sister circuits, reviewing a number-of-
immigrants finding based on an estimate such as that at issue in
the instant case. However, there are a number of cases reviewing
a district court’s use of estimates of drug quantity or financial
loss for sentencing purposes.8 Although this court has
8
The base offense level for drug offenses depends on the
drug type and quantity, see U.S. SENTENCING GUIDELINES MANUAL
§ 2D1.1(a), (c) (2000), and the base offense level for taxation
offenses depends on the amount of tax loss, see id. § 2T1.1(a).
Financial loss is a specific offense characteristic of fraud,
theft, and other similar offenses; the enhancement in the offense
level increases with the amount of loss. See id. § 2B1.1(b)(1)
(“Larceny, Embezzlement, and Other Forms of Theft; Receiving,
Transporting, Transferring, Transmitting, or Possessing Stolen
Property”); § 2F1.1(b)(1) (“Fraud and Deceit; Forgery; Offenses
15
recognized that a district court’s estimates of drug quantity and
financial loss must be supported by reasonably reliable
information, United States v. Robichaux, 995 F.2d 565, 571 (5th
Cir. 1993) (loss); United States v. Sherrod, 964 F.2d 1501, 1508
(5th Cir. 1992) (drug quantity), we have not specifically
addressed, as a number of other circuits have, the particular
nature of “multiplier” estimates of the type at issue in the
instant case, where a known quantity involved in a particular
occurrence (such as the amount of drugs sold in a transaction) is
extrapolated to other such occurrences. In United States v.
Rivera-Maldonado, 194 F.3d 224 (1st Cir. 1999), for example, the
First Circuit held that the district court clearly erred in using
a “drug-quantity estimate per sale [that] was based on eleven
controlled buys throughout the entire six-month investigation.”
Id. at 233. The First Circuit reasoned that the record did not
contain sufficient indicia of reliability to justify the
sentencing court’s use of the drug-quantity estimate per sale
(i.e., the “multiplier”). Id. at 232-33. Specifically, the
Rivera-Maldonado court determined that there was a lack of
sufficient indicia that the multiplier estimate was “reasonably
representative” of the drug quantity involved in other
transactions. Id. at 232. Based on similar reasoning, the
Second Circuit concluded in United States v. Shonubi, 998 F.2d 84
Involving Altered or Counterfeit Instruments Other than
Counterfeit Bearer Obligations of the United States”).
16
(2d Cir. 1993), that the district court improperly inferred from
the fact that the defendant was found to be smuggling 427.4 grams
of heroin to the United States from Nigeria on one occasion that
he must have smuggled equivalent amounts during seven other trips
to and from Nigeria. Id. at 89-90. The Shonubi court explained
that although the record supported the determination that the
defendant had smuggled heroin on these other trips, “there is
simply no proof he imported 427.4 grams of heroin on each of his
seven other trips.” Id. at 89. Consequently, the Second Circuit
concluded that “[t]he government failed to prove by a
preponderance of the evidence that Shonubi imported more than
427.4 grams of heroin.” Id. at 90.
We conclude that, unlike the drug quantity multipliers
denounced by the courts in Rivera-Maldonado and Shonubi, there is
sufficient reliable evidence that the multiplier used by the
district court in the instant case is reasonably representative
of the number of immigrants smuggled on each trip. The district
court’s findings that immigrants were smuggled on fifteen trips
and that two immigrants were smuggled on the twelve trips on
which immigrants were not apprehended are adequately supported by
a preponderance of the evidence in the record.9 Further, the
9
Nobelda and Leda contend that the finding of fifteen
trips is improper because the parents’ statements relied on by
the PSRs indicate a collective total of only thirteen trips.
However, a careful reading makes clear that the description in
the PSRs of the parents’ statements given to INS agents does
account for all fifteen trips that the government maintains took
17
record contains sufficient indicia of reliability demonstrating
the probable accuracy of the multiplier estimate of two
immigrants per trip. The PSRs’ findings are based on the
information gathered by the INS during its investigation of the
conspiracy, and this information was confirmed by Paredes in his
testimony at the sentencing hearing. See Cooper, 274 F.3d at
239-40 (finding the district court’s adoption of the PSR’s drug
quantity finding was not clearly erroneous where “[i]n addition
to the PSR, . . . the district court had the benefit of an
affidavit and live testimony from [an agent of the Bureau of
Alcohol, Tobacco, and Firearms] concerning the investigation into
the [drug distribution] organization”); United States v. Gracia,
983 F.2d 625, 629-30 (5th Cir. 1993) (“Presentence reports
generally bear indicia of reliability sufficient to permit
reliance thereon at sentencing; this case, involving a report
based on the results of the DEA investigation, is no
exception.”). Based on their investigation, INS agents concluded
that the conspirators used children to secure the benefit of the
Border Patrol’s policy of leniency toward families with young
children by paying parents for the use of their children in the
smuggling operation.10 Where, as here, the defendants have not
place.
10
In this appeal, the government also asserts that there
is additional circumstantial evidence in the record that,
although not relied on by the district court, supports a number-
of-immigrants finding of at least twenty-five (the lower end of
18
presented evidence rebutting a finding in their PSRs and the PSRs
contain (1) information that provides an adequate evidentiary
basis for that finding and (2) sufficient indicia that this
information is reliable, the district court may adopt the finding
without further inquiry. See Rome, 207 F.3d at 254.
Accordingly, the district court did not clearly err in
attributing the smuggling of twenty-nine immigrants to Nobelda
and Leda for sentencing purposes.
IV. THE INCREASE BASED ON THE LEADER/ORGANIZER FINDING
Nobelda and Leda also argue that the district court
erroneously denied their objections to the PSRs’ findings that
they had “leader or organizer” roles in the conspiracy.
Subsection 3B1.1(a) of the Sentencing Guidelines instructs the
sentencing court that “[i]f the defendant was an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive, increase by 4 levels.”
U.S. SENTENCING GUIDELINES MANUAL § 3B1.1(a) (2000). The district
court’s determination that a defendant was a leader or organizer
the range requiring an offense-level increase of six). The
government points to Paredes’s testimony that Nobelda and Leda
were found to be in possession of (1) receipts for money orders
that had all been sent to the same address (which the INS
apparently concluded were payments for smuggling), and (2) two
lists containing a total of twenty-five names, including the
names of six illegal immigrants identified by the INS in the
course of its investigation. Five of the six immigrants named in
the lists are the two couples and the one man who posed as
parents of children and were apprehended by Border Patrol
officers.
19
under subsection 3B1.1(a) is a factual finding that this court
reviews for clear error. United States v. Ayala, 47 F.3d 688,
689-90 (5th Cir. 1995).
The probation officer based the recommended leader/organizer
increase in offense level primarily on the findings that Nobelda
and Leda were responsible for supplying young children to
accompany illegal immigrants across the border and that they
supplied these children by recruiting and paying the children’s
parents and then taking the children to Mexico from Houston. The
PSR also stated that Nobelda and Leda recruited their co-
defendant Jose Antonio Guerrero-Funez and directed his actions in
allegedly collecting the smuggling fees and helping to transport
immigrants. As further evidence supporting the conclusion that
Leda was a leader/organizer, the PSR pointed to airline records
for the relevant time period indicating that Leda had traveled
from Houston to Harlingen, Texas “numerous times” with an infant
on her lap and had returned to Houston without an infant.11
In the district court, Nobelda argued that although she had
“enlisted the help of others during the course of the scheme,” it
was improper to characterize her as a “leader” or “organizer”
because there was no evidence that she exercised control or
11
In interviews with INS agents, the parents who had
permitted their children to be used in the smuggling operation
stated that they had been informed by Nobelda that their children
would be flown to Harlingen and then would cross the border by
land to arrive in Matamoros, Mexico.
20
authority over anyone else involved in the offense. At most,
Nobelda maintained, the evidence established that she had acted
as a “manager or supervisor,” which warrants an offense-level
increase of only three under the Sentencing Guidelines. See U.S.
SENTENCING GUIDELINES MANUAL § 3B1.1(b) (2000). Leda similarly argued
that she was not an “organizer” or “leader” because there was no
evidence that she had control or authority over the actions of
others. Leda further asserted that “there is reason to believe
that her role was actually minimal.” Specifically, she pointed
out that the INS discovered during its investigation that
“Nobelda used Leda’s name in much of the carrying out [of] the
details of the conspiracy.” Consequently, Leda maintained, it
was improper to assume that she had been the “Leda Cabrera”
listed in the airline records. Agreeing with the government that
the preponderance of the evidence indicated that both Nobelda and
Leda had acted as leaders or organizers, the district court
adopted the PSRs’ findings and applied the four-level increase
pursuant to subsection 3B1.1(a).
As noted above, a district court may adopt the facts
contained in a PSR without further inquiry if those facts have an
adequate evidentiary basis with sufficient indicia of reliability
and the defendant does not present rebuttal evidence or otherwise
demonstrate that the information in the PSR is unreliable. See
Rome, 207 F.3d at 254. Nobelda and Leda did not offer evidence
to rebut the leader/organizer findings in the PSRs, but rather
21
contend that there is insufficient evidence to support those
findings. Nobelda and Leda do not dispute the finding that they
recruited and paid parents to obtain children for use in the
smuggling operation, instead arguing that these actions amounted
to no more than “[m]erely tending to simple logistics” and thus
cannot support the district court’s application of subsection
3B1.1(a).12 Quoting from the Ninth Circuit’s opinion in United
States v. Harper, 33 F.3d 1143 (9th Cir. 1994), Nobelda and Leda
maintain that a leader/organizer increase is warranted under
subsection 3B1.1(a) only if the government shows that “the
defendant exercised some control over others involved in
commission of the offense [or was] responsible for organizing
others for the purpose of carrying out the crime.” Id. at 1151
(internal quotations omitted) (alteration in original).
The commentary to section 3B1.1 sets out an array of factors
that the sentencing court “should consider” “[i]n distinguishing
a leadership and organizational role (requiring a four-level
increase) from one of mere management or supervision (requiring a
three-level increase)”:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
12
Nobelda and Leda also have never disputed the finding
that there were five or more participants in the conspiracy.
22
U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 cmt. n.4 (2000). The
district court may find that a defendant exercised a
leader/organizer role by inference from the available facts. See
Ayala, 47 F.3d at 690. In light of the factors enumerated in
section 3B1.1’s commentary, the evidence cited in Nobelda and
Leda’s PSRs provides an adequate basis for the inference that
Nobelda and Leda were leaders or organizers. The PSR describes
interviews conducted by INS agents in which the parents
identified Nobelda and Leda and stated that they had offered the
parents money in exchange for the use of their children. One of
these parents stated that she had been told by Nobelda that a
flight to Harlingen would be part of the child’s trip to
Matamoros, and that the child would return to the United States
with illegal immigrants. The finding that Nobelda and Leda were
responsible for bringing the children to Mexico is corroborated
by the airline records containing Leda’s name and the evidence
(also cited in the PSR) that the flights from Houston to
Harlingen were confirmed from Leda’s telephone number. The PSR
also relied on information obtained from an INS interview of Jose
Antonio Guerrero-Funez, who made smuggling arrangements with
immigrants in Mexico. According to the agents, Guerrero-Funez
told them that Nobelda and Leda recruited him and directed him in
his smuggling activities in Mexico.
23
The foregoing information, indicating that Nobelda and Leda
were in charge of supplying children for use in the smuggling
operation, that they recruited accomplices, and that they
organized others in carrying out the crime, adequately supports
the PSRs’ findings that they were leaders or organizers.
Further, this information, having been derived primarily from the
INS’s report on its investigation and having been confirmed by
Paredes in his testimony at the sentencing hearing, bears
sufficient indicia of reliability.13 Accordingly, in the absence
of rebuttal evidence, the district court did not clearly err by
adopting the PSRs’ findings that Nobelda and Leda were leaders or
organizers.
13
Nobelda and Leda have not demonstrated that the
information obtained from the INS investigation is untrue or
unreliable. Leda cannot meet this burden with her claim that
Nobelda’s periodic use of Leda’s name undermines the evidence
that Leda took children to Harlingen or with her more general
claim that her role was less significant than that of Nobelda.
As we have noted in reviewing a district court’s fact findings
for sentencing purposes, “[t]he court is free to disregard a
defendant’s unsworn assertions that the PSR is unreliable.”
Ayala, 47 F.3d at 690.
Nobelda and Leda also challenge the viability of the
leader/organizer finding by pointing out that “[e]ven the PSRs
recognize that [Jose Antonio Guerrero-Funez] was the individual
who made all the smuggling arrangements with the aliens in
Mexico.” That does not, however, mean that Nobelda and Leda
could not exercise leader/organizer roles by being responsible
for supplying children to the immigrants, a key aspect of the
conspiracy. The commentary to section 3B1.1 recognizes that
“[t]here can, of course, be more than one person who qualifies as
a leader or organizer of a criminal association or conspiracy.”
U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 cmt. n.4 (2000). Moreover,
the PSR also states that Guerrero-Funez told INS agents that he
was recruited by Nobelda and Leda and that they directed his
activities.
24
V. THE DENIAL OF AN OFFENSE-LEVEL DECREASE FOR ACCEPTANCE OF
RESPONSIBILITY
In their final challenge to their sentences, Nobelda and
Leda argue that the district court erroneously adopted the PSRs’
findings that they were not entitled to reductions in their
offense levels for acceptance of responsibility because they had
“minimized” their culpability for the offense. Subsection
3E1.1(a) of the Sentencing Guidelines provides that a defendant’s
offense level should be decreased by two “[i]f the defendant
clearly demonstrates acceptance of responsibility for his
offense.” U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a) (2000).14
Following the guidance provided in the commentary to section
3E1.1, this court recognizes that the sentencing court “is in a
unique position to evaluate a defendant’s acceptance of
responsibility” and thus accords “great deference” to the
sentencing court’s finding on this issue. Id. § 3E1.1 cmt. n.5;
see also United States v. Hooten, 942 F.2d 878, 883 (5th Cir.
1991).
14
A defendant whose unreduced offense level is 16 or
greater and who has satisfied the “clearly demonstrates” standard
of subsection 3E1.1(a) is entitled to an additional decrease of
one level (for a total of three) if “the defendant has assisted
authorities in the investigation or prosecution of his own
misconduct.” U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(b) (2000).
Nobelda and Leda assert that they are entitled to the full three-
level decrease. Because we conclude that the district court did
not clearly err in finding that they failed to clearly
demonstrate acceptance of responsibility, however, we need not
address the applicability of subsection 3E1.1(b).
25
In an addendum to Nobelda’s PSR, the probation officer
explained his decision not to recommend a reduction in her
offense level for acceptance of responsibility:
We maintain that [Nobelda] has not demonstrated full
responsibility for her actions in this conspiracy, as she
emp[h]atically denied being a smuggler and minimized her
role by stating that she was “only trying to help out her
neighbors.”
At the sentencing hearing, the government’s attorney did not
defend the PSR’s recommendation regarding acceptance of
responsibility, but rather stated that “[i]t’s hard for me to
object [to an offense-level decrease for acceptance of
responsibility] when the person comes in and pleads guilty to the
offense short of trial and then she did debrief.” After noting
the PSR’s conclusion that Nobelda had minimized the seriousness
of her actions by stating that she was trying to help her
neighbors, the district court asked Nobelda whether she would
like to say anything about the acceptance of responsibility
issue.15 Nobelda responded:
I accepted my responsibility because . . . I accepted the
truth because I participated and I helped those people
out, but I want it to be clear that at no moment I was
caught with anybody, at no moment. . . . [A]t no moment
did those people do the deal with me. They paid her
(“the lady with the children”) but at no moment did they
pay me.
The court then overruled Nobelda’s objection and adopted the
PSR’s finding that she had not accepted responsibility to the
15
Both Nobelda and Leda communicated with the district
court through translators.
26
extent necessary to warrant an offense-level decrease under
section 3E1.1.
Turning to Leda’s objection, the district court pointed to
her written statement offered to demonstrate acceptance of
responsibility, which the probation officer had deemed
insufficient:
I am writing this statement so that I can attempt to
express how I badly feel for my actions in committing the
offense. . . . I knew that my sister, Nobelda Cabrera,
was involved in helping aliens illegally enter the United
States. She would do this by arranging for small
children to accompany the aliens as they crossed the
border. I am not sure of the exact details and I don’t
know how many times she did this. But I admit that I
helped her on some occasions by —— among other things ——
taking telephone messages regarding the smuggling, and
picking up money that was paid because of the smuggling.
I realize that I assisted her and contributed to her
illegal conduct.
The probation officer determined that this statement minimized
Leda’s role “by directing the aggravating role to Nobelda.” Leda
made a similar statement at the sentencing hearing when the
district court gave her the opportunity to speak about her
acceptance of responsibility:
I accept my responsibility. And I am asking you and all
the authorities for forgiveness. I accept that I took
messages for my sister. I accept that I knew . . . what
she was doing. But I don’t have so much to do with this
thing because many times I talked with her and she never
gave me the specific explanation.
The district court also overruled Leda’s objection and adopted
the PSR’s finding that she was not entitled to an offense-level
decrease for acceptance of responsibility.
27
Pointing to the commentary to section 3E1.1, Nobelda and
Leda argue that the district court erroneously denied them
acceptance-of-responsibility reductions because they “timely
admitted the conduct comprising the offense of conviction and
ha[ve] not falsely denied the additional relevant conduct for
which [they are] accountable.” Nobelda and Leda are correct that
it is appropriate for the district court to consider whether a
defendant has “truthfully admitt[ed] the conduct comprising the
offense(s) of conviction, and truthfully admitt[ed] or not
falsely den[ied] any additional relevant conduct” “[i]n
determining whether a defendant qualifies under subsection
[3E1.1](a).” U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 cmt. n.1(a)
(2000). While the commentary accords particular importance to
this consideration by deeming it “significant evidence” of
acceptance of responsibility if accompanied by a timely guilty
plea, see id. § 3E1.1 cmt. n.3,16 it is only one of the
considerations that the commentary deems appropriate, and the
commentary specifies that its list of appropriate considerations
is not exhaustive, see id. § 3E1.1 cmt. n.1.
16
The commentary states:
Entry of a plea of guilty prior to the commencement of
trial combined with truthfully admitting the conduct
comprising the offense of conviction, and truthfully
admitting or not falsely denying any additional relevant
conduct . . . will constitute significant evidence of
acceptance of responsibility for purposes of subsection
[3E1.1](a).
U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 cmt. n.3 (2000).
28
Particularly in light of the great deference that we owe the
district court’s acceptance-of-responsibility findings, we cannot
say that it was clear error to conclude that Nobelda and Leda’s
statements minimized their conduct to the extent that they were
not completely truthful or that Nobelda and Leda falsely denied
some of their relevant conduct. Moreover, even assuming Nobelda
and Leda’s statements were truthful and did not falsely deny
their offense conduct, it would not have been clear error for the
district to conclude that their minimization of their conduct
outweighed this “significant evidence” of acceptance of
responsibility. Nobelda and Leda “bear[] the burden of
demonstrating the recognition and affirmative acceptance of
personal responsibility.” Ayala, 47 F.3d at 690. Given that
Nobelda and Leda’s statements were somewhat equivocal and that
the district court is particularly well-situated to ascertain
whether defendants have demonstrated acceptance of
responsibility, the district court’s conclusion that Nobelda and
Leda failed to meet this burden is not clearly erroneous.
VI. CONCLUSION
Because we conclude that the district court did not clearly
err in finding that (1) the offense involved the smuggling of
twenty-nine immigrants, (2) Nobelda and Leda were leaders or
organizers, and (3) they had not accepted responsibility for
29
their conduct in the offense, we AFFIRM Nobelda and Leda
Cabrera’s sentences.
30