     Case: 12-40769       Document: 00512259317         Page: 1     Date Filed: 05/31/2013




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

                                                                            FILED
                                                                           May 31, 2013
                                     No. 12-40769
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

OSVALDO IVAN RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1599-9


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Osvaldo Ivan Rodriguez pleaded guilty to conspiracy
to harbor, conceal, and shield from detection undocumented aliens, in violation
of 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(A)(v)(I), and (a)(1)(B)(i). The district court
imposed a within-guidelines sentence of 70 months of imprisonment and a
three-year term of supervised release.
       On appeal, Rodriguez claims that the district court erred in applying a
two-level enhancement, pursuant to U.S.S.G. § 2L1.1(b)(4), for harboring a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40769

minor alien, and a two-level enhancement, pursuant to U.S.S.G. § 3B1.1(c),
based on his role in the offense. He also asserts that the district court, in
addressing his objections to those enhancements, failed to conduct an
evidentiary hearing under U.S.S.G. § 6A1.3 and Federal Rule of Criminal
Procedure 32(i).
      After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for procedural and substantive reasonableness under an abuse of discretion
standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010) (citing
Gall v. United States, 552 U.S. 38, 50-51 (2007)).           The district court’s
interpretation and application of the Guidelines are reviewed de novo, and its
factual findings are reviewed for clear error. Id. at 472. “There is no clear error
if the district court’s finding is plausible in light of the record as a whole.”
United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010) (internal quotation
marks and citation omitted).
      Rodriguez insists that there is no direct evidence that he knew that his
co-conspirators were harboring a 14-year old alien and that there is insufficient
reliable evidence from which the district court could have inferred that it was
reasonably foreseeable that a minor alien would be among those being harbored.
Direct knowledge is not required, however, for purposes of applying the
enhancement. See U.S.S.G. § 1B1.3(a)(1)(B). Moreover, the facts set forth in the
Presentence Investigation Report (PSR), which the district court adopted, reflect
that, among the aliens being harbored by Rodriguez’s co-conspirators, was a
minor alien who was not accompanied by a parent or grandparent. Rodriguez
did not dispute those facts or present any evidence to rebut the district court’s
finding that the alien-smuggling operation was not restricted by age or that
minors are frequently smuggled.       His “[m]ere objections do not suffice as
competent rebuttal evidence.” United States v. Solis, 299 F.3d 420, 455 (5th Cir.
2002). Thus, the district court did not clearly err in determining that it was
reasonably foreseeable that a minor alien would be among those harbored.

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                                  No. 12-40769

      Rodriguez also contends that the district court erred in adjusting the level
under § 3B1.1(c), based on his role in the offense. At sentencing, he claimed that
the facts did not support a three-level adjustment, as recommended in the PSR,
but supported, at most, a two-level enhancement.
      The parties disagree about whether Rodriguez preserved this issue or that
it has been waived or forfeited. We need not resolve this dispute, however,
because even if the challenge was not waived or forfeited, Rodriguez cannot
demonstrate that the district court committed any error, plain or otherwise, in
imposing the adjustment under § 3B1.1(c).
      To qualify for an adjustment under § 3B1.1, the defendant must have been
the organizer, leader, manager, or supervisor of one or more other participants.
§ 3B1.1 comment. (n.2). Evidence that the defendant supervised only one other
culpable participant is sufficient for purposes of the enhancement. See United
States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001).
      Although the district court did not adopt the PSR’s finding that the facts
warranted a three-level adjustment based on Rodriguez’s role in the offense, the
record reflects that the district court did find that the facts were sufficient to
show that Rodriguez received some profit and was a supervisor of at least one
person, which Rodriguez conceded during sentencing.          The district court’s
findings are plausible in light of the record as a whole. See Harris, 597 F.3d at
250. Accordingly, Rodriguez has failed to show that the district court erred in
applying the § 3B1.1(c) adjustment.
      Finally, Rodriguez’s assertion that the district court erred in failing to
conduct the sentencing hearing in accordance with Federal Rule of Criminal
Procedure 32(i) and § 6A1.3 of the Guidelines is refuted by the record. At
sentencing, Rodriguez confirmed that he had read and reviewed the PSR and
had discussed it with his attorney; the district court heard arguments from both
parties regarding the application of the sentencing enhancements; and the
district gave reasons for applying the enhancements.

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                                 No. 12-40769

      To summarize, Rodriguez has failed to show that the district court
committed any procedural error and has failed to rebut the presumption of
reasonableness accorded to his properly calculated, within-guidelines sentence.
See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (“A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable.”); see also United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009) (noting showing required to rebut the presumption). Accordingly,
the judgment of the district court is
AFFIRMED.




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