     Case: 18-40899       Document: 00514982993         Page: 1     Date Filed: 06/04/2019




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

                                                                                  FILED
                                     No. 18-40899                              June 4, 2019
                                   Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

NICOLAS LOZANO ANGULO,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:18-CR-148-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Nicolas Lozano Angulo appeals the sentence imposed following his
guilty-plea conviction for conspiracy to transport undocumented aliens within
the United States. He claims the district court clearly erred by applying a six-
level sentencing enhancement under Sentencing Guideline § 2L1.1(b)(2)(B)
based on its finding the offense involved 25-99 aliens. Along that line, Angulo
maintains the court erred: by determining prior instances of alien smuggling


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-40899

were relevant conduct to his offense, asserting they were too temporally remote
from his offense; and by relying on statements from witnesses who were not
prosecuted.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly
calculating the advisory Guidelines sentencing range. Gall v. United States,
552 U.S. 38, 48–51 (2007). If no such procedural error exists, a properly
preserved objection to an ultimate sentence is reviewed for substantive
reasonableness under an abuse-of-discretion standard. Id. at 51; United
States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that
respect, for issues preserved in district court, its application of the
Guidelines is reviewed de novo; its factual findings, including relevant-
conduct determinations, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Williams, 610
F.3d 271, 292 (5th Cir. 2010). Because Angulo provided no evidence to rebut
the information provided by his presentence investigation report, the district
court was free to adopt it and rely on it at sentencing. See United States v.
Alaniz, 726 F.3d 586, 619 (5th Cir. 2013).
      Prior offenses may constitute the same course of conduct, and therefore
qualify as relevant conduct to the offense of conviction, if they are sufficiently
connected to each other based on the similarity, regularity, and temporal
proximity of the offenses. United States v. Rhine, 583 F.3d 878, 886 (5th Cir.
2009). When one of the factors for determining same course of conduct “is
absent, a stronger presence of at least one of the other factors is required”.
U.S.S.G. § 1B1.3, cmt. n.5(B)(ii); see Rhine, 583 F.3d at 886–87.
      Angulo’s offense involved his delivering three undocumented aliens to a
law-enforcement officer. Four of the prior smuggling events, involving a total


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                                  No. 18-40899

of 17 aliens, occurred well within the one-year benchmark this court uses for
determining temporal proximity. See Rhine, 583 F.3d at 886–87. While the
other smuggling events occurred outside the one-year benchmark, Angulo has
waived any argument concerning the similarity and regularity of these events
by failing to raise and brief them. See United States v. Scroggins, 599 F.3d
433, 446–47 (5th Cir. 2010). And, because lack of temporal proximity is “not
dispositive”, Rhine, 583 F.3d at 887, Angulo fails to show the court clearly erred
in determining these prior smuggling events constituted relevant conduct to
his offense of conviction, see Williams, 610 F.3d at 292–94.
      AFFIRMED.




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