     Case: 10-40141 Document: 00511331111 Page: 1 Date Filed: 12/23/2010




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

                                                 FILED
                                                                         December 23, 2010
                                     No. 10-40141
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

ABEL MARQUEZ-RENDON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:09-CR-862-2


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Abel Marquez-Rendon (Marquez) pleaded guilty to count 5 of a seven-
count indictment charging him with concealing, harboring, and shielding an
undocumented alien. Marquez was sentenced at the bottom of the guidelines
imprisonment range to a 57-month term of imprisonment and to a three-year
period of supervised release. Marquez gave timely notice of his appeal.
       Marquez contends that he did not enter a guilty plea to count 5 of the
indictment. He contends, in the alternative, that the factual basis for his plea



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40141

was inadequate. We have reviewed these contentions, which were not raised in
the trial court, for plain error. See United States v. Vonn, 535 U.S. 55, 58-59
(2002). Marquez has not shown that his substantial rights were affected by any
error of the magistrate judge during the rearraignment hearing or that the
district court plainly erred in accepting his guilty plea. See United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004); see also United States v. Shum,
496 F.3d 390, 391-92 (5th Cir. 2007).
      Marquez contends that his sentence must be vacated in light of United
States v. O’Brien, 130 S. Ct. 2169 (2010). This error was not raised below and
is therefore reviewed for plain error. See Vonn, 535 U.S. at 58-59. Marquez’s
argument is based on an extension of O’Brien, and, therefore, cannot involve a
clear or obvious error. See United States v. Trejo, 610 F.3d 308, 319 (5th Cir.
2010).
      Marquez argues that the district court erred by increasing his guidelines
offense level, under U.S.S.G. § 2L1.1(b), because of a number of various specific
offense characteristics. “Although . . . 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 advisory
guidelines sentencing range for use in deciding on the sentence to impose.”
United States v. Rodriguez, 602 F.3d 346, 362 (5th Cir. 2010) (citing Gall v.
United States, 552 U.S. 38, 51 (2007)).
      Marquez’s overriding complaint is that the district court relied improperly
on multiple layers of unreliable hearsay evidence in increasing his offense level
based on the various offense characteristics.         Marquez notes that the
presentence report (PSR) was prepared and that a Government witness,
Immigration and Customs Enforcement Special Agent John Flores, testified at
the sentencing hearing on the basis of the material witness statements and of
the statement of Marquez’s codefendant, Santiago Cisneros Diaz (Cisneros).
Marquez contends in conclusional fashion that the witness statements are

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                                        No. 10-40141

unreliable on their face. He notes also that the statements were taken in
Spanish and were transcribed in English. If the witnesses could not understand
English, he contends, they could not have understood what they were doing
when they certified that the representations in the written statements were true
and correct. These contentions are without merit.
       Ordinarily, this court reviews a district court’s application of the
Sentencing Guidelines de novo and its factual findings for clear error.
Rodriguez, 602 F.3d at 362. To the extent that Marquez did not object to the
district court’s guidelines calculation, review is for plain error. See id. In his
reply brief, Marquez contends that his written objections to the sentencing
enhancements and his hearsay objection were sufficient to preserve error.
       Marquez did assert a hearsay objection to Flores’s testimony, but it was
not predicated on the unreliability of the evidence. Instead, it was based on a
denial of his Sixth Amendment right of confrontation.1 Marquez did adopt
generally the arguments of one of his codefendants, Leonardo Juarez-Torres
(Juarez). Although Juarez argued that the evidence considered by the probation
officer was unreliable, his argument differed from the argument asserted by
Marquez in this appeal.           Therefore, we have reviewed for plain error the
question whether the district court erred in considering unreliable hearsay
evidence at sentencing. See Rodriguez, 602 F.3d at 362.
       At sentencing, a district court may consider any information, including
hearsay, that bears sufficient indicia of reliability to support its probable
accuracy, and a defendant’s confrontation rights at sentencing are severely
restricted. United States v. Ramirez, 271 F.3d 611, 612-13 (5th Cir. 2001). The

       1
         Marquez invoked Crawford v. Washington, 541 U.S. 36, 50-59 (2004) (holding that
the Confrontation Clause prohibits admission of an out-of-court testimonial statement unless
the witness is unavailable and the defendant had a prior opportunity for cross examination)).
Because the rule in Crawford does not apply in sentencing proceedings, the issue asserted in
the district court is foreclosed. United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006);
see also United States v. Fields, 483 F.3d 313, 331-32 & n.20 (5th Cir. 2007)). It is not asserted
on appeal.

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PSR is considered to be reliable and may be considered by the district court. Id.
at 613. The defendant bears the burden of proving that the district court should
not rely on the PSR. United States v. Betancourt, 422 F.3d 240, 248 (5th Cir.
2005). “If no relevant affidavits or other evidence is submitted to rebut the
information contained in 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). Marquez and his codefendants offered no evidence to rebut the facts
in the PSR and made no attempt to demonstrate that those facts were materially
untrue or unreliable.
      Consequently, those facts were properly considered by the district court
in applying the Guidelines. See Ramirez, 271 F.3d at 612-13. We note also that
the district court properly held Marquez responsible for the reasonably
foreseeable acts of Cisneros, Juarez, and others involved in the smuggling and
harboring scheme. See U.S.S.G. § 1B1.3(a)(1)(B).
      For those reasons, the district court did not err in finding that Marquez
harbored an unaccompanied minor (§ 2L1.1(b)(4)) or in finding that a dangerous
weapon was brandished or otherwise used during the offense (§ 2L1.1(b)(5)(B)).
See United States v. Dunigan, 555 F.3d 501, 504-07 (5th Cir.) (recognizing that
a BB gun is a dangerous weapon that is capable of inflicting serious bodily
injury), cert. denied, 129 S. Ct. 2450 (2009); see also U.S.S.G. § 1B1.1, comment.
(n.1(C)) (definition of “brandishment”).
      Nor did the district court err in applying U.S.S.G. § 2L1.1(b)(6), as
Marquez is responsible for the reasonably foreseeable acts of Cisneros in
pointing a dangerous weapon at the heads of the undocumented aliens. See
§ 1B1.3(a)(1)(B). We have little difficulty in determining that these actions
created a substantial risk of death of serious bodily injury.      See Dunigan,
555 F.3d at 507. Contrary to Marquez’s argument, the guidelines enhancement
is not limited to cases involving transportation of undocumented aliens. See
United States v. Solis-Garcia, 420 F.3d 511, 514; § 2L1.1, comment. (n.5).

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Assuming arguendo that the district court plainly erred by imposing the (b)(6)
enhancement based on the same conduct it considered in imposing the (b)(5)
enhancement, see § 2L1.1, comment. (n.5), a challenge Marquez raises for the
first time on appeal, such error did not affect Marquez’s substantial rights. See
United States v. Blocker, 612 F.3d 413, 416-17 (5th Cir. 2010). The record does
not reflect that the district court would have given Marquez a lower sentence if
it had sentenced Marquez pursuant to the “correct” sentencing range. See id.
      Likewise, the district court did not err in imposing the two-level increase
under § 2L1.1(b)(7)(A) because the undocumented aliens sustained cuts on their
knees during the offense. See United States v. Eubanks, 593 F.3d 645, 651-52
(7th Cir. 2010).   Nor did it err in applying § 2L1.1(b)(8)(A) because the
undocumented aliens were forced to pay an additional $500 if they wanted to
leave the residence, or they would be returned to Mexico.
      Finally, the district court did not err in applying § 2L1.1(b)(2) because the
offense involved 12 undocumented aliens. See Rodriguez, 602 F.3d at 362. The
judgment is AFFIRMED.




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