    Case: 12-40709   Document: 00512626819    Page: 1   Date Filed: 05/12/2014




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

                               No. 12-40709
                                                                        Fifth Circuit

                                                                      FILED
                                                                  May 12, 2014
                                                                 Lyle W. Cayce
                                                                      Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff–Appellee,

versus

ADAN GUTIERREZ-MENDEZ, also known as Adan Gutierrez,

                                         Defendant–Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before JONES, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


     A jury found Adan Gutierrez-Mendez guilty of conspiring to harbor ille-
gal aliens and harboring illegal aliens for commercial advantage or private
financial gain. He appeals, challenging the admission of certain bad-act evi-
dence under Federal Rule of Evidence 404(b), the sufficiency of the evidence,
and the sentence. We affirm.
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                                No. 12-40709
                                      I.
      Two illegal aliens, Ada Coronado-Perez and Otilia Sebastian-Ramirez,
testified that in early 2011, they paid to be smuggled into the United States.
They were given the password “Parajon” in case they were questioned while
traveling. Upon entry, they were captured and deported to Guatemala. Nei-
ther saw Gutierrez-Mendez during that entry.
      They made a second attempt to enter in March 2011 and were again
given the password “Parajon.” At a stash house in Mexico, they met “Beto,”
who told them that he supervised the stash houses in Mexico that belonged to
Parajon. A group of about twenty-five aliens, including Coronado-Perez and
Sebastian-Ramirez, later crossed the river on small rafts. When they reached
a highway, a man picked up the whole group in a truck and said that only the
Parajon group, which included Coronado-Perez and Sebastian-Ramirez, would
continue. The Parajon group (about twelve aliens) were then taken to a house.
      There were three women in the Parajon group: Coronado-Perez,
Sebastian-Ramirez, and an injured woman traveling with her family. The
woman in charge of the house instructed the women to get ready to leave. The
injured woman stayed behind, and Beto picked up the other two. Before
Sebastian-Ramirez got into Beto’s car, Beto told Coronado-Perez that she
would need to “behave” if she wanted things to continue to go well. Beto drove
them to a trailer about twenty minutes away, where he took the women’s shoes
and then introduced them to “Parajon” and “Chano.” Beto told them that Para-
jon was the boss of all of the smuggling houses in the United States. At trial
and during a photo lineup shortly after the incidents that follow, both women
identified Gutierrez-Mendez as “Parajon.”
     Beto and Chano told the women that they would leave the next morning
at four o’clock. Gutierrez-Mendez said he would go ahead of them and act as a


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                                 No. 12-40709
lookout. He asked Coronado-Perez whether she had paid the money she owed
for her first entry, telling her she now owed $6,000.
      The men gave the women several alcoholic drinks, and Gutierrez-
Mendez instructed the women to tell him, the boss at the trailer, if the other
men did not respect them.       Later that night, Beto and Chano sexually
assaulted the two women.
      The next morning, either Gutierrez-Mendez or Beto told Sebastian-
Ramirez that they would not be going to their next location that day but would
do so the next day. After the three men left the trailer, the women fled to a
nearby house and told the owner that they had been threatened and kidnaped.
The women were crying and seemed very scared. Sebastian-Ramirez called
her brother, Juan Lopez, to come help; the two women assisted him in verifying
the location of the trailer. Juan Lopez then called Police Officer Julio Barajas
to come to his house. There, the women told Barajas what had happened and
pointed out the location of the trailer on a cellphone GPS.
      The government also called a sheriff’s captain, Brandon Torres, to testify
about a 2009 traffic stop involving Gutierrez-Mendez. Before trial, the govern-
ment gave Gutierrez-Mendez notice under Rule 404(b) of its intent to introduce
Torres’s testimony to prove that Gutierrez-Mendez had previously transported
two illegal aliens in 2009, ostensibly to prove his “intent” in 2011. Over his
objection, the court ruled that Torres’s testimony was admissible.
      Torres testified that in June 2009, he pulled over Gutierrez-Mendez for
driving on the wrong side of the road, which was a major corridor for drug and
human smuggling. He noticed two passengers, one lying in the back in such a
way that Torres thought she was trying to conceal herself. When Gutierrez-
Mendez lowered the driver’s side window, Torres “smelled a foul odor of human
sweat.” The prosecution then asked Torres about the significance of the sweat


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                                  No. 12-40709
smell: “And based on your experience, your four years working in [that county],
that odor was consistent with what?” Torres answered, “Human smuggling.”
      Torres asked Gutierrez-Mendez about his passengers, and Gutierrez-
Mendez explained that he saw them outside a church while he was driving up
a highway. But, according to Torres, it would be impossible to see that church
from the highway. Gutierrez-Mendez became nervous and unresponsive once
Torres pointed that out to him. Torres then interviewed the two women pas-
sengers, who identified themselves in Spanish as aliens from Mexico.
Gutierrez-Mendez was not arrested or prosecuted for any crime in regard to
the 2009 incident.
      Gutierrez-Mendez testified that in or around December 2010, Beto called
him from McAllen, Texas, to tell him that he and Chano had work. He thought
it odd that the two men called him because he did not know them very well.
Nonetheless, he told them that he was interested in work and that he had
heard that they were going to be harvesting onions. He had never heard of
Chano’s or Beto’s being involved in illegal activity.
      Chano and Beto later told him, while the three of them were at a trailer,
that they “wanted for [him] to go in front because they wanted to bring some
people in.” Gutierrez-Mendez refused to participate because he remembered
the 2009 incident and a warning from immigration officers that he would be
arrested if caught transporting illegal aliens. He denied seeing Coronado-
Perez or Sebastian-Ramirez at the house trailer. He left for Houston the same
night, and neither Beto nor Chano called him again.
      In rebuttal, the government called Adrian Olivarez, an immigration spe-
cial agent, who testified that he spoke with Gutierrez-Mendez on December 12,
2011. Gutierrez-Mendez told Olivarez that he met Beto at a Walmart in Mis-
sion, Texas; that two women were with Beto; that Beto asked whether
Gutierrez-Mendez would scout for law enforcement while Beto transported the
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                                       No. 12-40709
women to his trailer; that Gutierrez-Mendez had agreed to act as a scout while
Beto transported the women; that he was at the trailer with Beto, Chano, and
two women; and that after Gutierrez-Mendez left the trailer, Chano called and
informed him that the women had escaped.
       The jury found Gutierrez-Mendez guilty of one count of conspiring to har-
bor illegal aliens and two counts of harboring illegal aliens for commercial
advantage or private financial gain. He was sentenced to 120 months on each
count.


                                              II.
       Gutierrez-Mendez maintains that the admission of Torres’s testimony
was an abuse of discretion. Specifically, Gutierrez-Mendez claims that the
2009 traffic stop was not relevant to prove his “intent” in harboring the two
aliens but instead was relevant only to prove his criminal propensity and there-
fore inadmissible under Rule 404(b). 1 He further contends that, even if rele-
vant to prove intent, Torres’s testimony was unfairly prejudicial and neverthe-
less inadmissible under Federal Rule of Evidence 403. 2 Finally, he avers that
the government failed to provide sufficient evidence that a relevant bad act
even occurred, rendering Torres’s testimony inadmissible under Federal Rule
of Evidence 104(b). 3




       1 “Evidence of a crime, wrong, or other act is not admissible to prove a person’s charac-
ter in order to show that on a particular occasion the person acted in accordance with the
character.” FED. R. EVID. 404(b)(1).
       2“The court may exclude relevant evidence if its probative value is substantially out-
weighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evi-
dence.” FED. R. EVID. 403.
       3“When the relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does exist.” FED. R. EVID. 104(b).
                                               5
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                                       No. 12-40709
                                              A.
       Generally, Rule 404(b)(1) excludes “evidence of a person’s past misdeeds
if the sole value of such evidence is to prove the existence of a trait of character,
and, from that trait, an inference of particular conduct.” 4 The rule then pro-
vides what is mistakenly described as an “exception” to this general bar on
propensity evidence: Evidence of a crime, wrong, or other act “may be admissi-
ble for another purpose, such as proving motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, absence of mistake, or lack of accident.” FED.
R. EVID. 404(b)(2). 5
       “We apply an abuse-of-discretion standard in reviewing . . . evidentiary
rulings [, which] is heightened when evidence is admitted under [Rule] 404(b),
because evidence in criminal trials must be strictly relevant to the particular
offense charged.” United States v. Kinchen, 729 F.3d 466, 470 (5th Cir. 2013)
(internal citations, quotation marks, and alterations omitted). In truth, our
actual review is more complicated and includes four different inquiries.
       First, because prior bad act evidence is only “conditionally relevant,” we
have to ascertain whether the jury was presented with sufficient evidence that
the putative bad act actually occurred. If not, then testimony as to it would be
irrelevant under Rule 104(b), and it would have been error to admit it. See
Huddleston v. United States, 485 U.S. 681, 692 (1988).
       Once we have addressed conditional relevance, we apply the two-part



       4DAVID P. LEONARD, THE NEW WIGMORE: EVIDENCE OF OTHER MISCONDUCT AND
SIMILAR EVENTS (“WIGMORE”) § 1.2.
       5  See WIGMORE § 4.4 n.2 and accompanying text, collecting sources (all non-
authoritative) that mistakenly describe Rule 404(b)(2) as comprising “exceptions” to the pro-
pensity bar. The reason that characterization is questionable is that a jury is still prohibited
from inferring, from evidence of past conduct, that the defendant has a particular propensity
and further inferring that he acted in accord with that propensity in making whatever finding
it is charged with making, including mens rea.
                                               6
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                                       No. 12-40709
Beechum framework. 6 We ask whether the challenged evidence was relevant
for any purpose other than proving the defendant’s propensity to commit
crimes. If so, we then assess whether the court abused its discretion under
Rule 403 when it determined that the unfair prejudice associated with the Rule
404(b) evidence did not substantially outweigh its probative value.
      If the government presented sufficient evidence that the bad act
occurred, if it is relevant to something other than character, and if its probative
value was not substantially outweighed by its unfair prejudice, then the evi-
dence was admissible, and the district court did not err. If, however, any of
these three conditions is not met, the evidence was inadmissible, and we must
assess whether the error affected Gutierrez-Mendez’s substantial rights under
the harmless-error rule. See FED. R. CRIM. P. 52(a).


                                              B.
      Indeed, at least one of the three conditions is not met, so we need address
it to the exclusion of the others. Gutierrez-Mendez correctly claims that the
Rule 404(b) admission was erroneous because the government failed to provide
sufficient evidence that a relevant bad act had even occurred. In Huddleston,
485 U.S. at 685–91, the Court held that Rule 404(b) bad-act evidence is subject
to Rule 104(b) on conditional relevance. Under Rule 104(b), evidence is admis-
sible only if there is “evidence sufficient to support a finding” that the alleged
conduct actually occurred. See WIGMORE § 4.5.1 (discussing Huddleston). “The
court . . . examines all the evidence in the case and decides whether the jury
could reasonably find the conditional fact . . . by a preponderance of the evi-
dence.” Huddleston, 485 U.S. at 690.




      6   See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).
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                                      No. 12-40709
                                             1.
       Complicating our inquiry is that it is not entirely certain what bad act
the jury was meant to find. The record is unenlightening. At a pretrial con-
ference, the district court seemed to say that the evidence would be admissible
to prove knowledge, an element of the charged offense. But at trial, the court
instructed the jury that it could consider the traffic-stop testimony “for the
limited purpose of determining whether or not the Defendant had the neces-
sary state of mind or intent to commit the offenses for which he is charged.” 7
None of that, however, reveals what the actual relevant bad act was; there
appear to be three candidates for that.
       First, it could be that the prior bad act was the traffic infraction (driving
on the wrong part of the road). At oral argument, the government seemed to
suggest at one point that the infraction was proven by sufficient Rule 104(b)
material. Yet, there is no imaginable relationship between an illegal traffic
maneuver in 2009 and an alleged instance of human trafficking in 2012; that
cannot be the “bad act” the evidence was meant to prove.
       Second, it could be that Gutierrez-Mendez had systematically engaged
in human trafficking using a truck that, by the time of the 2009 traffic stop,
had started to smell of human sweat. The only evidence for such a proposition
was Torres’s testimony that the vehicle smelled of sweat, so we hesitate to
assume that was the relevant bad act to be proven.
       The government, at oral argument, seemed to absolve us of having to
pursue this troubling second theory when it stated that the relevant bad act
was just that Gutierrez-Mendez was knowingly harboring the two particular


       7 The jury charge was expanded to include both intent and “whether the defendant
acted according to a plan or in preparation for commission of a crime.” The “plan” language,
though, seems a misfit, the traffic stop neither bearing any similarities to the methods used
in the charged offense nor evincing preparation for it. See generally WIGMORE § 9.1.
                                             8
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                                      No. 12-40709
women that were in his vehicle in 2009. So, we must determine whether the
2009 stop could lead a jury to find by a preponderance of evidence that
Gutierrez-Mendez intentionally harbored the two women in 2009, knowing
that they were illegal aliens.


                                             2.
       We know of eight published decisions from this court resolving the con-
ditional relevance of Rule 404(b) evidence, four ruling in each direction. 8 In
Beechum, the question was whether the defendant unlawfully possessed a pair
of gift cards with the intent to deprive the owners of them permanently. The
en banc court held that there was sufficient evidence for the jury so to find:
    Beechum possessed the credit cards of two different individuals. Nei-
    ther card had been signed by the person to whom it was issued. When
    asked about the cards, Beechum answered first that the only cards he
    had were his own. When confronted with the credit cards, which were
    obviously not his own, Beechum responded that they had never been
    used. He refused to respond further because the inspector “had all the
    answers.” The logical inference from this statement is that Beechum
    was attempting to mitigate his culpability, having been caught red-
    handed. The undisputed evidence indicated that he could have pos-
    sessed the cards for some ten months. The jury would have been wholly
    justified in finding that Beechum possessed these cards with the intent
    permanently to deprive the owners of them.
Beechum, 582 F.2d at 916. Beechum is probably the most helpful of the four


       8 In most cases, the proffered evidence will obviously be relevant under Rule 104
because it will involve past convictions or uncharged conduct that undeniably occurred. The
following cases are only those in which there was a real Rule 104(b) dispute.
       Decisions finding proffered Rule 404(b) evidence relevant under Rule 104(b) include
Beechum, 582 F.2d at 916; United States v. Heard, 709 F.3d 413 (5th Cir. 2013); United States
v. Floyd, 343 F.3d 363 (5th Cir. 2003); and United States v. McCarthy, 36 F.3d 1349 (5th Cir.
1994). Cases going the other way on conditional relevance of Rule 404(b) evidence include
United States v. Sumlin, 489 F.3d 683 (5th Cir. 2007); United States v. Ridlehuber, 11 F.3d
516 (5th Cir. 1993); United States v. Jimenez, 613 F.2d 1373 (5th Cir. 1990); and United
States v. Brown, 608 F.2d 551 (5th Cir. 1979).
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                                     No. 12-40709
cases to the government. 9
      Gutierrez-Mendez urges that Sumlin is the closest case, but its reason-
ing is difficult to apply. It involved unlawful possession of a firearm by a con-
victed felon. The prosecutor presented testimony from the arresting officer
that he suspected that the defendant was transporting narcotics because the
body of his car had several loose screws, he found a single alleged marihuana
cigarette, and a canine unit alerted to the front and driver’s side of the vehicle.
A search of the car found no drugs. What any of that had to do with the felony-
possession charge is lost on us, as it was on the district court:
    After the prosecutor elicited the aforementioned testimony, the district
    judge, at the bench, said to him: “What’s the charge in this case? Pos-
    session of a firearm by a felon? This is a bunch of nonsense you’re going
    into. All the search didn’t reveal any drugs. All you’re talking about is
    drugs. I’m going to declare a mistrial in this case in about five seconds.”
Sumlin, 489 F.3d at 686. For obvious reasons, we found the testimony insuf-
ficient to prove that the defendant had committed the extrinsic act of drug
transportation. Id. at 691.
      Though Gutierrez-Mendez relies on Sumlin, it is the other cases that are
most helpful to him, in particular Ridlehuber. There, we held that the defen-
dant’s possession of chemicals, thermometers, tubing, a Pyrex funnel, rubber
stoppers, and the fact that his residence “smelled like a drug lab” was not
enough under Rule 104(b) to prove that he was involved in the manufacture of




      9  Heard involved whether the defendant had engaged in bankruptcy fraud; the gov-
ernment presented direct evidence that he owned a corporation that he did not disclose in
bankruptcy and that although he listed his income at $9,000 per year during the relevant
period, he actually contributed between $70,000 and $90,000 to buy a house. Heard, 709 F.3d
at 430−31. In Floyd, the government presented testimony from a co-conspirator that the
defendant had engaged in an intricate fraud involving medical billing. Floyd, 343 F.3d at
368−69. McCarthy involved only circumstantial evidence of two burglaries but quite a damn-
ing amount of it. See McCarthy, 36 F.3d at 1354.
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                                      No. 12-40709
methamphetamine. Ridlehuber, 11 F.3d at 523. 10
       The facts here are somewhere between Ridlehuber and Beechum. On the
one hand, Beechum involved unsigned gift cards made out to someone other
than the defendant who had them in his wallet. Here, by contrast, it is not
obvious that Gutierrez-Mendez should have known that the women he was
giving a ride to were illegal aliens. His apparent inability to provide a sturdy
explanation for how he picked up the women, however, contrasts with the
legitimate business explanation the defendant in Ridlehuber gave for why he
possessed the ostensible hallmarks of a smelly lab. Beechum, though, involved
a defendant who, for ten months, apparently held onto the gift cards made out
to other persons. Here, by contrast, the government has not provided any evi-
dence that Gutierrez-Mendez had known the women any longer than it took to
pick them up or that he knew they were in the United States unlawfully.
       On balance, the facts here seem decidedly closer to those of Ridlehuber
than to those of Beechum. If the facts were insufficient for a jury to conclude
by a preponderance of the evidence that the defendant in Ridlehuber was inten-
tionally making meth, the facts here must be insufficient for a jury to conclude
by the same standard that Gutierrez-Mendez was intentionally harboring ille-
gal aliens in 2009.
       In sum, the government presented insufficient evidence that Gutierrez-
Mendez knowingly harbored illegal aliens at the time of his 2009 traffic stop.
Under Rule 104(b), Torres’s testimony should have been excluded.



       10Brown involved alleged child abuse by a military-base resident. The court held that
the prosecutor could not admit evidence that the same child—the defendant’s two-year-old
son—had been admitted to a base hospital suffering several multiple bruises because it had
submitted no evidence that the defendant was the cause of those injuries. Brown, 608 F.2d
at 555. Jimenez appears to hold that merely finding cocaine in a room that the defendant
may have shared with someone else, without more, was insufficient for a jury to find that he
had illegally possessed the cocaine. Jimenez, 613 F.2d at 1376.
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                                 No. 12-40709
                                      C.
      Because the bad-act evidence was erroneously admitted, we address the
government’s claim that it was harmless. Under Rule 52 of the Federal Rules
of Criminal Procedure, “[a]ny error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.” “An error is harmless when
it does not affect the substantial rights of a party. The government has the
burden of establishing harmlessness beyond a reasonable doubt.”           United
States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008). It has satisfied that
burden.
      Even excluding the impermissible Rule 404(b) material, the evidence of
guilt was overwhelming. Both of the female victims gave consistent accounts
of Gutierrez-Mendez’s involvement in the enterprise that brought them into
the United States. During both of their initial attempts to enter, they were
given the password “Parajon” to use should they encounter trouble at the bor-
der. They received the same password on their later entry (leading to the
events of this case). They met each other after they were combined into a large
group of “Parajon’s” people. The “Parajon” women—ultimately just the two
victims—were segregated and taken to the trailer in McAllen, where they ulti-
mately met “Parajon,” whom they both identified as Gutierrez-Mendez in court
and during a photo lineup after the police began their investigation.
      Gutierrez-Mendez told both women that he was in charge of the opera-
tion’s houses in the United States; he explained the plans to complete their
journey into Houston; and he informed one of them that she owed him money
for his endeavors. He told both women that if either of the other two men at
the trailer “disrespected” them, they needed to tell him because he was the
boss of the house. After the women were sexually assaulted, he informed the
women that they would not be going to Houston that morning after all but
possibly the following day.
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                                    No. 12-40709
      Olivarez’s testimony, offered in rebuttal, supported that testimony. He
stated, among other things, that Gutierrez-Mendez met two girls at a trailer
with Beto and Chano, the latter of whom informed Gutierrez-Mendez that the
two women had escaped. Olivarez’s testimony was admissible both to impeach
Gutierrez-Mendez’s contrary testimony and as substantive proof of Gutierrez-
Mendez’s guilt. See FED. R. EVID. 801(d)(2). 11
      Also, the impermissibly admitted evidence was too weak and benign to
give us concern that it affected the verdict. As compared to the charged offense
and its attendant circumstances (including the sexual assaults of the two vic-
tims), the June 2009 traffic incident is insignificant. Furthermore, just being
caught driving two illegal aliens bears little resemblance to the intricate web
of a conspiracy described to the jury for the charged offense, reducing even the
likelihood of an impermissible propensity inference. Also, the weakness of the
evidence of the government’s story (viz., the very thing that made the evidence
impermissible under Rule 104(b)) reduced the chances that the jury would
have even thought that something illegal happened in 2009. Finally, the multi-
ple limiting instructions further reduced whatever risk remained of unfair pre-
judice as to the Rule 404(b) materials. See Wright, 634 F.3d at 775. The error
was harmless.


                                          III.
      The district court applied three sentencing enhancements, all related to
the co-conspirators’ sexual assaults of the two victims: U.S.S.G. § 2L1.1(b)(5)
for brandishing a dangerous weapon (namely, a knife); § 2L1.1(b)(6) for inten-
tionally or recklessly creating a substantial risk of serious bodily injury; and



      11  The state of the record elucidated here also meets Gutierrez-Mendez’s arguments
as to the sufficiency of the evidence to support the conviction.
                                           13
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                                       No. 12-40709
§ 2L1.1(b)(7) for causing substantial bodily harm. Gutierrez-Mendez chal-
lenges the sentence on two bases. First, he contends that the court had insuf-
ficient evidence from which to find that he could be held responsible for the
knife-point sexual assaults. Second, he maintains that the court misinter-
preted Comment 5 to § 2L1.1(b)(6) in such a way that it impermissibly double-
counted enhancements under subsections (b)(5) and (6) for the same conduct.


                                              A.
        Regarding sufficiency, the evidence, according to the presentence report
(“PSR”), is that when the women refused to have sex with Gutierrez-Mendez’s
co-conspirators, they drew a knife on each of them and sexually assaulted
them.        The court adopted the factual finding in the PSR that—although
Gutierrez-Mendez did not personally brandish a weapon or sexually assault
the women—it was “reasonably foreseeable” that his co-conspirators might. 12
The court gave a detailed explanation for its finding of foreseeability:
        As to the dangerous weapon that—the Court recognizes that it was
    not Mr. Gutierrez who used that but that it is reasonably foreseeable
    under all of the circumstances here that that would occur as a result of
    what we have here. And I’ll begin with what I’ve touched on already,
    that is that, you know, we have ten aliens belonging to this Defendant
    to begin with, the women are separated out and they’re separated out
    with the exception of the one who is traveling with her husband and
    apparently has been injured.
       And they are taken to a trailer house that is not what we know to be
    a common stash house. This is a very different setting. It is a little
    unusual to remove a group who are at, you know, what we all generally
    describe as a stash house and take them to this type of setting. This is
    a trailer home where the—you know, the other two are, that is, the


        12See U.S.S.G. § 1B1.3(a)(1)(B) (stating that relevant conduct for a guideline calcula-
tion includes “all reasonably foreseeable acts and omission of others in furtherance of the
jointly undertaken criminal activity”); United States v. Williams, 610 F.3d 271, 292 (5th Cir.
2010) (same).
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                                 No. 12-40709
   individual identified as Chano—referred to by Chano and is Marciano
   Gomez and this other individual identified as Beto.
      The circumstances there, I think, to begin with are very suspect
   because you do not have them being housed in another stash house.
   They’re being housed in what appears to be, for all practical purposes,
   somebody’s, you know, home where they live and under very unusual
   circumstances to begin with when they go there.
      Generally speaking, you have material witnesses there. Even if they
   are housed in somebody’s home, which occasionally we do have a home
   that’s a full home also being used as a stash house but seldom are they
   integrated within that home itself. There may be a bedroom separated
   for them. There may be out buildings separated out for them but in this
   instance, they are basically given, you know, a bedroom to sleep in.
       The Court believes that the whole setup to begin with, you know,
   taking them to the home, having this little barbecue, encouraging them
   to drink, segregating them one from the other so that they sleep in sepa-
   rate bedrooms is from beginning intended to be a set up to have them
   either have consensual sex if they were willing to go along with them
   but if not, to have sex under the circumstances that developed here as
   to one material witness didn’t quite develop as to the other but that this
   is part of the manner in which this operation worked because all the
   circumstances are that that was the intent from the moment that they
   were taken care of, that in that respect, the fact that Mr. Gutierrez was
   present throughout this whole evening and next—part of the next
   morning, that there was discussion about who would be sleeping with
   whom.
       During some part of the evening when Mr. Gutierrez was present,
   that at one point in time Mr. Gutierrez tells the material witnesses that
   if they are disrespected that they should let him know and I think that
   was already a signal that they were expected to have sex, that it would
   not be any kind of, I guess in his opinion, a violent act. Nonetheless, I
   think forcing anybody into sex regardless of the circumstances is a vio-
   lent act but that that was intended to begin with so that under all of
   those circumstances, I do believe that it is reasonable―reasonably fore-
   seeable that an individual would use some sort of weapon―in this case,
   that was a knife―to coerce the material witness into having sex. So the
   Court believes that that adjustment is also warranted.
A finding of “reasonable foreseeability” is a finding of fact that we review for

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                                    No. 12-40709
clear error. United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 2002).
      The district court, in the above passage, was relying on testimony from
the two victims as well as the much more detailed PSR. Gutierrez-Mendez had
the burden of proving the PSR unreliable and materially untrue. United States
v. Betancourt, 422 F.3d 240, 248 (5th Cir. 2005). “If no relevant affidavits or
other evidence is submitted to rebut [the PSR], the court is free to adopt its
findings without further inquiry or explanation.” United States v. Reasor, 541
F.3d 366, 369 (5th Cir. 2008); United States v. Alaniz, 726 F.3d 586, 619 (5th
Cir. 2013). Self-serving statements are insufficient to meet the defendant’s
burden. See United States v. Londono, 285 F.3d 348, 355 (5th Cir. 2002);
United States v. Slaughter, 238 F.3d 580, 585 (5th Cir. 2000). Nor do mere
objections to the PSR suffice as competent rebuttal evidence. Alaniz, 726 F.3d
at 619; United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002).
      Gutierrez-Mendez offered nothing more than his self-serving statements
of innocence and mere objections to the PSR. 13 Plainly, he has not met his
heavy burden of proving clear error in the factual findings, and we accordingly
find no error in the § 2L1.1(b)(5) and (7) enhancements. Whether we can also
affirm as to the subsection (b)(6) enhancement requires us to address
Gutierrez-Mendez’s final contention.


                                           B.
      Section 2L1.1(b)(5) calls for a four-level enhancement (or an enhance-
ment to level 20) “if a dangerous weapon . . . was brandished or otherwise
used.” Section 2L1.1(b)(6) calls for a two-level enhancement (or an enhance-
ment to level 18) if the offense “involved intentionally or recklessly creating a



      13 In those objections, Gutierrez-Mendez generally asserted that he was innocent of
the crimes and that the PSR’s claims about his involvement were not true.
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                                 No. 12-40709
substantial risk of . . . serious bodily injury to another person,” including a
sexual assault. The Official Commentary to § 2L1.1 (specifically Comment 5)
provides that courts shall not “apply the adjustment in subsection (b)(6) if the
only reckless conduct that created a substantial risk of death or serious bodily
injury is conduct for which the defendant received an enhancement under sub-
section (b)(5).”
      Gutierrez-Mendez avers that the court applied both subsections (b)(5)
and (6) to the same conduct, namely the rape and attempted rape at knife-
point. The government presses a theory that there is no double-counting
because subsection (b)(5) focuses on conduct (the brandishing of the firearm),
but subsection (b)(6) focuses on results (the creation of a substantial risk of
serious bodily injury).   This is the most difficult to resolve of Gutierrez-
Mendez’s sentencing issues, dealing with an open question in this circuit, but
we need not decide it.
      The district court explained that it would have given Gutierrez the same
sentence (viz., the statutory maximum) even if it was mistaken in its applica-
tion of the guidelines:
    [I]n the event that the Court is in error as to the calculation and any
    one or more than one of the enhancements should not have been
    applied, the Court nonetheless considers the circumstances here as the
    Court has already touched on them, that the Court believes that this
    was part of your―to use a term and used often in criminal cases, part
    of your modus operandi, that you involved yourself in the trafficking of
    aliens and that as part of that, you―I hesitate to find the right word
    ―I’m not sure that it is authorized or encouraged, permitted or had as
    a part of your manner of operation the sexual abuse of the aliens―the
    female aliens within the group.
       So the Court believes that even if the Guideline range the Court has
    not correctly applied the enhancements here, that based on the circum-
    stances present here, that is, that you purposely removed these two
    females from the group of the other aliens that were part of your group,
    that you isolated them to a location where it would be difficult for them

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                                       No. 12-40709
    to have protection, that you set it up such that they would be sexually
    assaulted, that that warrants a sentence at the high end of the statu-
    tory limit here of 120 months.
We recently reasoned that, as an alternative basis for affirmance, a similar
statement rendered harmless any putative error in the application of the
guidelines. 14 Richardson, which is binding precedent, is indistinguishable
from this case in regard to the sentencing issue.
       The judgment of conviction and sentence is AFFIRMED.




       14 Compare United States v. Richardson, 713 F.3d 232, 234, 237 (5th Cir.), cert. denied,
134 S. Ct. 230 (2013) (“The district court stated that even if its calculation under the guide-
lines was incorrect, it would still impose the same sentence.”) (internal brackets, quotation
marks, and citation omitted) with United States v. Delgado-Martinez, 564 F.3d 750, 754 (5th
Cir. 2009) (“[I]t appears that the court consciously selected from the low end of what it
believed to be the available range. . . . Under these circumstances, we cannot conclude that
the district court had the 30-month sentence in mind and would have imposed it, notwith-
standing the error made in arriving at the defendant’s guideline range.”). Richardson is con-
sistent with at least one of our other recent decisions, United States v. Reyes-Guzman, 519 F.
App’x 317, 317 (5th Cir.), cert denied, 134 S. Ct. 356 (2013).
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