     Case: 10-41312     Document: 00511646873         Page: 1     Date Filed: 10/27/2011




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

                                                                            FILED
                                                                         October 27, 2011
                                     No. 10-41312
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RODRIGO GARCIA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:10-CR-184-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        On two bases, Rodrigo Garcia challenges his sentence of 51-months’
imprisonment and $1,218,960.11 of restitution, following his guilty-plea
conviction for fraud by wire, radio, or television, in violation of 18 U.S.C. § 1343.
The charges arose after Garcia obtained for his use over $1.3 million from Felipe
Avelino’s accounts and investments in the guise of assisting Avelino to manage
$1.7 million dollars from a civil-action award.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41312

      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 48-51 (2007). In that respect, its application of the guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Garcia first maintains the district court erred in determining Avelino was
a “vulnerable victim”, which resulted in a two-level sentencing enhancement.
U.S.S.G. § 3A1.1(b). Our court reviews “a finding of unusual vulnerability for
clear error and to determine whether the district court’s conclusion was
plausible in light of the record as a whole”. United States v. Robinson, 119 F.3d
1205, 1218 (5th Cir. 1997) (citation and internal quotation marks omitted). The
record as a whole supports the district court’s determination because Avelino:
had a limited education and understanding of financial transactions; could not
read, write, or otherwise communicate in English; was an illegal alien in the
United States and then a non-resident without access to his accounts other than
through Garcia; and was a paraplegic during most of the fraudulent scheme.
Garcia himself notes that, on the basis of casual personal relationships, Avelino
hired two individuals to manage his financial and legal affairs who were
ultimately found to be unqualified. Accordingly, the district court did not clearly
err in determining Avelino was unusually vulnerable to the fraud perpetrated
by Garcia. See U.S.S.G. § 3A1.1 cmt. n.2; Robinson, 119 F.3d at 1218.
      Garcia also contends the district court erred in relying on the pre-sentence
investigation report (PSR) to calculate the amounts Garcia fraudulently
obtained. For the first time on appeal, he contends the PSR lacked sufficient
indicia of reliability for the district court to rely on it for both a 16-level
enhancement to Garcia’s offense level and to establish the amount of loss for

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                                   No. 10-41312

restitution. As Garcia concedes, because he did not raise this claim in district
court, it is subject only to plain-error review. See, e.g., Puckett v. United States,
129 S. Ct. 1423, 1428-29 (2009); United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). To establish reversible plain error, Garcia must show a clear or
obvious error affecting his substantial rights. E.g., Puckett, 129 S. Ct. at 1429.
Even if reversible plain error is shown, our court retains discretion to correct it
and generally will do so only if the error “seriously affects the fairness, integrity
or public reputation of judicial proceedings”. Id. (citation and internal quotation
marks omitted).
      The PSR relied on a report prepared by the Federal Bureau of
Investigation in determining these amounts. Garcia presented no evidence in
district court to rebut the amounts provided by the PSR. Additionally, he
presented no evidence the withdrawals were authorized or that he did not
ultimately receive or control the unauthorized funds. In any event, these are
factual issues that were capable of resolution in the district court and, thus,
never capable of constituting plain (clear or obvious) error. See, e.g., United
States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001). Therefore, Garcia has not
shown plain error in the district court’s reliance on the PSR.
      AFFIRMED.




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