United States v. Anselmo Gonzalez-Mendoza

Case: 09-20696 Document: 00511301331 Page: 1 Date Filed: 11/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 22, 2010
No. 09-20696
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANSELMO GONZALEZ-MENDOZA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-191-3
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Anselmo Gonzalez-Mendoza (Gonzalez) appeals the 37-month sentence
imposed after he pleaded guilty to one count of conspiracy to transport and
harbor unlawful aliens. Gonzalez contends that the district court erred in
applying a six-level enhancement to his offense level based on his having
smuggled, transported, or harbored at least 25 aliens under U.S.S.G.
§ 2L1.1(b)(2) and in applying a two-level enhancement under § 2L1.1(b)(8) based
on the involuntary detention of an alien through threat or coercion, or in
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20696 Document: 00511301331 Page: 2 Date Filed: 11/22/2010
No. 09-20696
connection with a demand for payment. We review the district court’s
application of the Sentencing Guidelines de novo and its factual findings for
clear error. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
The district court adopted the calculation in the presentence report (PSR)
that the conspiracy involved the smuggling, transporting, or harboring of at least
25 unlawful aliens. That calculation was based in part on the discovery of 17
unlawful aliens being harbored by Gonzalez and his co-conspirators at a house
in Houston. Admissions by Gonzalez, statements by some of his co-conspirators,
and interviews with some of the unlawful aliens who had been harbored in the
Houston residence, all described the conspirators’ transporting and harboring
of numerous unlawful aliens in the weeks before the authorities raided the house
in Houston. Gonzalez, by his own admission, was at the house approximately
20 days before his arrest. Also, the PSR stated that inside the house authorities
found a ledger containing multiple pages of names, telephone numbers, and
corresponding dollar amounts, which authorities believed to be a record of the
conspirators’ smuggling activities. In addition to relying upon the factual basis,
the district court was entitled to rely upon the information in the PSR because
it bore “some indicia of reliability.” United States v. Scher, 601 F.3d 408, 413
(5th Cir. 2010). Gonzalez has failed to meet his burden of presenting rebuttal
evidence to demonstrate that the information in the PSR is inaccurate or
materially untrue. See id. The record shows that the district court’s application
of the six-level enhancement was plausible in light of the record as a whole.
United States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006); see also United
States v. Cabrera, 288 F.3d 163, 166-73 (5th Cir. 2002).
Both the factual basis that Gonzalez admitted was true and the PSR
reported statements of numerous unlawful aliens who described how Gonzalez
and his co-conspirators had detained unlawful aliens under armed guard at the
Houston residence and demanded additional payments in exchange for their
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No. 09-20696
release. Also, agents recovered firearms from the residence. Thus, the district
court’s application of the two-level enhancement was likewise plausible in light
of the record as a whole. See Gonzales, 436 F.3d at 584; see also Scher, 601 F.3d
at 413.
AFFIRMED.
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