United States v. Alvarado

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 5, 2009
No. 08-41159 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALBERT ALVARADO
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:08-CR-291-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Albert Alvarado was convicted by a jury of two counts of harboring
undocumented aliens in violation of 8 U.S.C. § 1324(a). He appeals his sentence
of concurrent 58-month terms of imprisonment and concurrent three-year terms
of supervised release. Alvarado argues that the sentencing court erred by failing
to downwardly adjust his sentence sua sponte because he was not motivated by
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41159
profit 1 and because his role in the offense was minor.2 He also argues that the
sentencing court plainly erred by enhancing his offense level for obstruction of
justice based on his trial testimony 3 and further enhancing his offense level
because the offense involved a substantial risk of death or serious bodily injury.4
Because Alvarado did not raise these objections at sentencing we review
all of his arguments for plain error.5 Alvarado’s challenges to the adjustments
to his offense level are all based on factual determinations that were made or,
in the case of the argued-for downward adjustments, could have been made, by
the district court. Essentially, Alvarado argues that the court’s factual
determinations are not supported by the record. “[Q]uestions of fact capable of
resolution at sentencing can never constitute plain error.” 6 Accordingly,
Alvarado is not entitled to appellate relief.
AFFIRMED.
1
U.S.S.G. § 2L1.1(b)(1).
2
U.S.S.G. § 3B1.2(b).
3
U.S.S.G. § 3C1.1.
4
U.S.S.G. § 2L1.1(b)(6).
5
U.S. v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007).
6
U.S. v. Fierro, 38 F.3d 761, 774 (5th Cir. 2004) (citing U.S. v. Guerrero, 5 F.3d 868,
871 (5th Cir.1993)).
2