     Case: 14-41042      Document: 00513302206         Page: 1    Date Filed: 12/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-41042                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               December 10, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

PIOQUINTO HUETO-ALEMAN, also known as Pioquinto Huato-Aleman,
also known as Guero,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-144-5


Before DAVIS, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Pioquinto Hueto-Aleman pled guilty to conspiracy to transport unlawful
aliens. The district court overruled his objection to a sentencing enhancement
based on another conspirator’s sexual assault of a minor.                  Hueto-Aleman
appealed. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41042
                FACTUAL AND PROCEDURAL BACKGROUND
         Hueto-Aleman was a member of an alien-trafficking operation that had
five conspirators. He and three other conspirators forcibly moved a group of
aliens from a stash house in McAllen, Texas, to a stash house in nearby
Brownsville because the alien-trafficking organization running the McAllen
house owed the conspirators’ organization money. At the Brownsville stash
house, the conspirators took the aliens’ money and contacted their family
members to demand more money.            There were weapons throughout the
Brownsville house, and one conspirator always carried a long knife. About a
week later, the fifth conspirator arrived with more aliens. Both groups were
driven north to an area near a Border Patrol highway checkpoint. From there,
they were made to walk through the brush country to evade the checkpoint.
         Border Patrol agents discovered the aliens walking through the King
Ranch outside of Kingsville. The four conspirators serving as guides, including
Hueto-Aleman, escaped the agents. The agents learned from the aliens that,
earlier that day, one conspirator, Noe Soto-Huato, had forced a 15-year-old
unaccompanied female, M.G.C., to get water for the group with him and
sexually assaulted her once they were alone. The sentencing issue on appeal
concerns whether Hueto-Aleman may be held responsible for this assault.
         The agents also learned from the aliens the location of the Brownsville
house, executed a search warrant on the house, and found all five conspirators
there.     The agents found condoms in the house and garage.         Most of the
conspirators had condoms in their possession.          One conspirator, Daniel
Solorzano-Garcia, told the officers that the men had condoms because they had
consensual sex with the female aliens. Soto-Huato initially told the agents he
and M.G.C. had only kissed. When pressed, he admitted he had engaged in
sexual activity with M.G.C., but claimed it was consensual.


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                                 No. 14-41042
      Hueto-Aleman pled guilty to conspiracy to transport unlawful aliens. He
objected to the four-level sentencing enhancement he received for Noe Soto-
Huato’s sexual assault of M.G.C. Under the Sentencing Guidelines, a death or
bodily injury sustained during the offense increases the offense level based on
the seriousness of the injury. U.S.S.G. § 2L1.1(b)(7). Noe Soto-Huato’s sexual
assault of M.G.C. was a “serious bodily injury,” resulting in a four-level
increase. See id. §§ 2L1.1(b)(7)(B), 1B1.1 cmt. n.1(L).        Hueto-Aleman’s
presentence report (“PSR”) included the sexual assault as “relevant conduct”
because it was reasonably foreseeable and in furtherance of the jointly
undertaken criminal activity. Id. § 1B1.3(a)(1)(B).
      At the sentencing hearing, the Government offered testimony from two
female aliens, Floridalma Rosales-DeLeon and Leticia Elizabeth Martinez-
Aviles, to help establish reasonable foreseeability of the sexual assault. Both
women testified about the conspirators’ numerous sexual advances on the
female aliens.
      Rosales-DeLeon testified that, one time, the conspirators woke her and
two other women, and Hueto-Aleman asked which one of them wanted to sleep
with the conspirator Jose Julian Garcia-Pimental because he wanted someone
by him. One woman rose and went to Garcia-Pimental. Rosales also said that
Hueto-Aleman wanted to touch Martinez-Aviles’s breast that night, but
Martinez-Aviles said she would push him if he did.
      Martinez-Aviles attested to multiple unwanted sexual advances from
Hueto-Aleman.     Martinez-Aviles testified that Hueto-Aleman touched her
buttocks at least once while she was cooking. She told him not to touch her.
Then, on another night, Hueto-Aleman lay next to Martinez-Aviles on a
mattress and touched her legs. She again told him to leave her alone, and he
stopped. Despite these occurrences, both Martinez-Aviles and Rosales-DeLeon
testified that the female aliens were not forced to have sexual contact with the
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                                 No. 14-41042
conspirators. Martinez-Aviles also attested that the leader, Sergio Eliodoro
Garcia, had previously told Martinez-Aviles that she should let him know if
anyone tried to touch her.
      During the walk towards Kingsville, the conspirators separated the
female aliens from the male aliens and forced the females to sleep close to
them. One night, Soto-Huato sexually assaulted Martinez-Aviles. Garcia-
Pimental had ordered Martinez-Aviles to come with him because Soto-Huato
wanted her. Soto-Huato forced her to lie close to him because he wanted to be
“warmed up.” He then proceeded to assault her. Martinez-Aviles said three
conspirators, including Hueto-Aleman, were “right there alongside,” but that
they did not realize what was going on.
      Regarding Soto-Huato’s assault of the 15-year-old, M.G.C., one Border
Patrol agent testified that the conspirator Daniel Solorzano-Garcia had told
him in an interview that Solorzano-Garcia knew Soto-Huato intended to
sexually assault M.G.C. when he took her to get water. The agent did not recall
how Solorzano-Garcia knew this.
      Hueto-Aleman argued that he was unaware of Soto-Huato’s assaults of
M.G.C. or Martinez-Aviles. He claimed to know only of consensual sexual
activity and thus, the sexual assault was not reasonably foreseeable to him.
The Government argued that Hueto-Aleman’s committing his own sexual
advances and knowledge of other sexual advances made sexual assault
reasonably foreseeable to him.
      Relying on the PSR and the testimony, the district court overruled
Hueto-Aleman’s objection and included the sexual assault as relevant conduct.
The court characterized the conspiracy as having a “sexually charged
atmosphere” because the conspirators sought frequent sexual contact with the
female aliens, some of which was consensual, and some of which was not. The
conspirators were all aware of these activities. Regarding the “consensual”
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                                No. 14-41042
sexual contact, the district court was not certain the contact could be
characterized as consensual because the female aliens had no power vis-à-vis
the conspirators. In finding sexual assault reasonably foreseeable, the court
specifically noted Solorzano-Garcia’s statement to the Border Patrol agent that
he knew Soto-Huato intended to assault M.G.C. The court also noted that the
female aliens were ordered to go to Soto-Huato to keep him warm, that sexual
contact was on-going, and that “this had to be common knowledge to most
everyone.” The court found that Hueto-Aleman’s Guidelines range with this
enhancement was 70 to 87 months imprisonment. The court sentenced him to
70 months in prison and three years of supervised release, and Hueto-Aleman
timely appealed.


                                DISCUSSION
      Under the Sentencing Guidelines, a defendant is accountable for other
conspirators’ actions that are reasonably foreseeable and in furtherance of the
jointly undertaken criminal activity. See U.S.S.G. § 1B1.3(a)(1)(B). Hueto-
Aleman objected to his sentencing enhancement for Soto-Huato’s assault of
M.G.C. on the ground that it “was not a foreseeable act nor was it in
furtherance of the jointly undertaken criminal activity.” At the sentencing
hearing, however, Hueto-Aleman only pressed arguments about whether the
sexual assault was reasonably foreseeable. The district court’s ruling appears
to focus on the question of reasonable foreseeability. Hueto-Aleman does not
complain on appeal that the district court erred by focusing on reasonable
foreseeability and not explicitly addressing whether the assault was within the
scope or in furtherance of the jointly undertaken criminal activity. He also
does not present an argument that the sexual assault was not within the scope
or in furtherance of the jointly undertaken criminal activity. Instead, Hueto-
Aleman’s appellate brief focuses entirely on arguing that the district court
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                                  No. 14-41042
erred in finding the assault reasonably foreseeable. Litigants that fail to press
arguments on appeal have waived them. Nichols v. Enterasys Networks, Inc.,
495 F.3d 185, 190 (5th Cir. 2007). Accordingly, we only review the district
court’s determination of reasonable foreseeability.
      Reasonable foreseeability is a factual finding that we review for clear
error. United States v. Gutierrez-Mendez, 752 F.3d 418, 429 (5th Cir. 2014).
Clear error exists if, after reviewing the entire evidence, we are “left with the
definite and firm conviction that a mistake has been committed.” United States
v. Mata, 624 F.3d 170, 173 (5th Cir. 2010). If a factual finding is “plausible in
light of the record as a whole,” it is not clearly erroneous and we cannot reverse
solely because we would weigh the evidence differently. Id. At sentencing, the
district court must “determine its factual findings . . . by a preponderance of
the relevant and sufficiently reliable evidence.” United States v. Betancourt,
422 F.3d 240, 247 (5th Cir. 2005). The district court can consider any evidence
with “sufficient indicia of reliability to support its probable accuracy,”
including hearsay. Id.
      Our analysis is guided by a recent case in which we discussed whether a
sexual assault was reasonably foreseeable. See Gutierrez-Mendez, 752 F.3d
418. There, the district court found a sexual assault in an alien trafficking
conspiracy reasonably foreseeable when the female aliens were taken to a
separate house for a barbeque, given alcohol, and encouraged to have
consensual sex with the conspirators. Id. at 428. The defendant had instructed
the female aliens to let him know if they were disrespected and was present
during discussions about who was sleeping with whom. Id. The district court
reasoned that because the situation was designed to encourage consensual sex,
it was reasonably foreseeable to the conspirators that sexual assault could
occur if the female aliens did not go along with the conspirators’ intentions
when weapons were present. Id. at 428–29. The panel affirmed when the
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                                  No. 14-41042
defendant offered no evidence other than “his self-serving statements of
innocence” to rebut the PSR. Id. at 429.
      Similarly, these conspirators sought out sexual contact with the female
aliens in an environment where there were weapons. Hueto-Aleman made
repeated sexual advances towards Martinez-Aviles. He also participated in
another conspirator’s sexual advances when he asked which female alien
would sleep with Garcia-Pimental. The conspirators were also aware of each
other’s advances on the female aliens as is evident by Garcia’s instruction to
Martinez-Aviles that he should let her know if anyone touched her. Solorzano-
Garcia’s statement to the Border Patrol agent that he knew Soto-Huato
intended to assault M.G.C. shows that at least one other conspirator knew of
Soto-Huato’s intentions.      The district court could consider the agent’s
testimony about Solorzano-Garcia’s statement because a sentencing court can
consider hearsay if it has “sufficient indicia of reliability.” See Betancourt, 422
F.3d at 247. This evidence supports the district court’s finding that this was a
“sexually charged” conspiracy, in which all the conspirators knew of one
another’s activities.
      A conspirator does not need knowledge of a past incident of sexual
assault for a future sexual assault to be reasonably foreseeable. See Gutierrez-
Mendez, 752 F.3d at 428–29. A sexual assault is reasonably foreseeable when
alien traffickers seek out sexual activity with female aliens in an environment
where weapons are present. Id. The conspirators in this case did exactly that.
The district court did not clearly err.
      AFFIRMED.




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