     Case: 15-41175        Document: 00514396194        Page: 1     Date Filed: 03/21/2018




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


                                     No. 15-41175                                FILED
                                   Summary Calendar                        March 21, 2018
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

EDUARDO LUIS POMPA, also known as Lalo,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-129-3


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Eduardo      Luis    Pompa      challenges     his   sentence      of    63       months’
imprisonment, imposed following his jury-trial conviction for conspiracy to
transport undocumented aliens into the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), (A)(iii), (A)(v)(I), & (B)(iii). Pompa presents two issues, the
first being whether the district court committed clear error in failing to
decrease his offense level pursuant to a minor-role adjustment, under


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-41175

Sentencing Guideline § 3B1.2(b) because he was substantially less culpable
than other members of the smuggling conspiracy. U.S.S.G. § 3B1.2, cmt. 3(A).
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the 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,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      Guideline § 3B1.2(b) provides for a two-level reduction of defendant’s
offense level if the court finds defendant met his burden of showing, by a
preponderance of the evidence, he was a minor participant, meaning he was
“substantially less culpable than the average participant in the criminal
activity”.   U.S.S.G. § 3B1.2, cmt. 3A.      Whether defendant was a minor
participant is a factual finding, and, therefore, reviewed for clear error, as
provided above. United States v. Sanchez-Villarreal, 857 F.3d 714, 721 (5th
Cir. 2017). “A factual finding is not clearly erroneous if it is plausible in light
of the record read as a whole.” Id. (internal quotation omitted).
      Pompa contends the court erred in relying solely on the importance of
his role as a “scout” and in not considering other factors listed in the
commentary to Guideline § 3B1.2, in violation of this court’s opinion in
Sanchez-Villarreal. His reliance on Sanchez-Villarreal is misplaced because
the district court in that case relied solely on the essential nature of




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                                   No. 15-41175

defendant’s role and apparently had no further evidence regarding culpability.
Id. at 722.
       Here, the court presided over Pompa’s trial and adopted findings in the
presentence investigation report (PSR) that reflected Pompa’s role and
participation in the smuggling conspiracy and also the roles of his
coconspirators. In the light of the court’s knowledge of facts establishing
Pompa’s role and the role of the others involved in the criminal activity, it can
be inferred the court considered Pompa’s culpability in relation to the other
defendants. See United States v. Gomez-Valle, 828 F.3d 324, 330–31 (5th Cir.
2016). The record shows finding Pompa was not substantially less culpable
than the average participant was plausible, and, therefore, not clearly
erroneous. Sanchez-Villarreal, 857 F.3d at 721.
       Next, Pompa claims the court erred in imposing a two-level enhancement
for harboring an unaccompanied minor.            U.S.S.G. § 2L1.1(b)(4).      Pompa
concedes: he did not preserve this issue in district court; and, therefore, review
is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, he must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id. For the following
reasons, Pompa fails to demonstrate the court committed the requisite clear or
obvious error in making the adjustment pursuant to Guideline § 2L1.1(b)(4).
Id.
       As an initial matter, “questions of fact capable of resolution in the district
court can never constitute plain error”. United States v. Illies, 805 F.3d 607,
609 (5th Cir. 2015) (internal quotations omitted).             In any event, the



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                                No. 15-41175

enhancement is supported by the record. See United States v. Rodriguez, 525
F. App’x 268, 269–70 (5th Cir. 2013).
      Law-enforcement agents identified 115 undocumented aliens in a stash
house, ranging from 12 to over 50 years-of-age. The PSR placed Pompa on
notice he was being held accountable for harboring minor children
unaccompanied by adults, and he failed to present any evidence to dispute that
finding. United States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014). Moreover,
even assuming he was unaware of the children’s presence, the court could infer
it was reasonably foreseeable to Pompa that an unaccompanied minor alien
would be among those harbored during the extensive smuggling operation.
U.S.S.G. § 1B1.3(a)(1)(B).
      AFFIRMED.




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