     Case: 14-40307      Document: 00512959049         Page: 1    Date Filed: 03/05/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 14-40307                                 FILED
                                  Summary Calendar                           March 5, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MAURICIO GARFIAS-CHAIRES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:13-CR-1462-3


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Mauricio Garfias-Chaires pleaded guilty to conspiracy to harbor illegal
aliens. The district court imposed a sentence of 25 months of imprisonment.
His total offense level included a nine-level enhancement under U.S.S.G.
§ 2L1.1(b)(2)(C) because the offense involved more than 100 aliens. Because
he made no objection to the nine-level enhancement under § 2L1.1(b)(2)(C), our
review of his challenges to his sentence based on this enhancement is for plain


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 14-40307

error. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007); Puckett
v. United States, 556 U.S. 129, 135 (2009).
      Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we engage in
a bifurcated review of the sentence imposed by the district court. United States
v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider
whether the district court committed a “significant procedural error,” such as
miscalculating the advisory guidelines range. Id. If there is no error, we
proceed to the second step and review the substantive reasonableness of the
sentence. Id. at 751-53. Garfias-Chaires argues that the district court erred
procedurally   in    applying   the   nine-level    enhancement      pursuant    to
§ 2L1.1(b)(2)(C) because the record as a whole did not support the
enhancement. Facts used to determine a sentence must be supported “by a
preponderance of the relevant and sufficiently reliable evidence.”          United
States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013) (internal quotation marks
and citation omitted). The defendant has the burden of presenting evidence to
show that the facts contained in the PSR are inaccurate or materially untrue.
Id. Garfias-Chaires has presented no such evidence and, thus, has not shown
that the district court plainly erred in applying the enhancement because of
insufficient factual support.
      He also argues that the district court erred procedurally in applying the
nine-level enhancement pursuant to § 2L1.1(b)(2)(C) because this section of the
guidelines is an arbitrary and capricious exercise of the power granted to the
Sentencing Commission by Congress. See United States v. White, 869 F.2d 822,
827 (5th Cir. 1989); see also Chevron v. Natural Res. Def. Council, 467 U.S. 837,
843-44 (1984). Garfias-Chaires argues that choosing 100 aliens as the number
required for imposing the nine-level enhancement was arbitrary because the
number of aliens involved in the offense is not the best method for quantifying



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                                  No. 14-40307

the seriousness of the offense, makes no distinction between offenses involving
101 or thousands of aliens, and has not been justified by the Sentencing
Commission either factually or procedurally. Regulations are not arbitrary if
they are a reasonable accommodation between conflicting policy choices.
Chevron, 467 U.S. at 844-45; United State v. Harper, 932 F.2d 1073, 1075 (5th
Cir. 1991). In United States v. Duarte, 569 F.3d, 528, 531 n.9 (5th Cir. 2009),
this court noted that the Sentencing Guidelines were an attempt to resolve the
conflicting sentencing goals of 18 U.S.C. § 3553(a) given the differences in
sentencing philosophy within the criminal justice community. The plain error
standard is not satisfied if existing precedent must be extended to recognize
the alleged error. United States v. Jackson, 549 F.3d 963, 977 (5th Cir. 2008);
United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010). On appeal, Garfias-
Chaires has not produced anything to show that the nine-level enhancement
in § 2L1.1(b)(2)(C) was clearly an arbitrary and capricious exercise of the
Sentencing Commission’s authority rather than a rational accommodation
between conflicting policy choices. He has not shown that the district court
plainly erred procedurally in applying the enhancement.
      Finally, Garfias-Chaires raises a substantive reasonableness challenge
to the application of the enhancement by asserting that the nine-level increase
is excessive for an offense involving 143 aliens.       We review sentences for
reasonableness in light of the sentencing factors in § 3553(a). United States v.
Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Garfias-Chaires’s arguments do
not show a clear error of judgment on the district court’s part in balancing the
§ 3553(a) factors. That we “might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”
Gall, 552 U.S. at 51.
      AFFIRMED.



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