     Case: 14-40927      Document: 00513213166         Page: 1    Date Filed: 09/30/2015




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

                                                                                   FILED
                                    No. 14-40927                          September 30, 2015
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAMIRO FORTONEL-OCAMPO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-842-2


Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM: *
       Ramiro Fortonel-Ocampo, whose correct surname appears to be
Fortanel-Ocampo, appeals the sentence imposed after he pleaded guilty to
harboring and concealing illegal aliens for financial gain. He contends that the
district court erred by failing to reduce his offense level by two levels for his
allegedly minor role in the offense. He also says the court erred by increasing




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40927

his offense level by six levels for harboring more than 25 aliens and by two
levels for harboring at least one unaccompanied minor alien.
      We review the district court’s factual findings for clear error. United
States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010). We will not reverse the
district court if its finding is plausible in light of the record as a whole, even if
we might have weighed the evidence differently. United States v. Harris, 434
F.3d 767, 773 (5th Cir. 2005). Particular deference is due when, as here, the
district court’s findings are based on credibility. United States v. Perez, 217
F.3d 323, 332 (5th Cir. 2000). The district court was entitled to rely on the
facts recounted in the PSR unless Fortanel-Ocampo demonstrated “by
competent rebuttal evidence that the information is materially untrue,
inaccurate or unreliable.” United States v. Floyd, 343 F.3d 363, 372 (5th Cir.
2003) (internal quotation marks and citation omitted). “Mere objections do not
suffice as competent rebuttal evidence.” United States v. Parker, 133 F.3d 322,
329 (5th Cir. 1998).      The Government was required to prove the facts
warranting an increase by a preponderance of the evidence. Juarez, 626 F.3d
at 251.
      Concerning the two-level and six-level increases, Fortanel-Ocampo relies
primarily on his lack of actual knowledge and the lack of foreseeability that
the alien smuggling scheme would involve more than 25 aliens and any
unaccompanied minors. Because the defendant was involved in a “jointly
undertaken criminal activity,” he is responsible for “all reasonably foreseeable
acts and omissions of others in furtherance of the jointly undertaken criminal
activity.” U.S.S.G. § 1B1.3(a)(1)(B); see United States v. De Jesus-Ojeda, 515
F.3d 434, 442-43 (5th Cir. 2008).
      Fortanel-Ocampo’s contentions are based on his assertion that he
reluctantly became involved in the smuggling scheme at the last minute while



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                                  No. 14-40927

looking for his brother among the smuggled aliens. The district court rejected
this narrative as “farfetched,” and we defer to the court’s credibility
determination.    See Perez, 217 F.3d at 332.       Moreover, unrebutted facts
established that Fortanel-Ocampo supervised the aliens while they were
hiding in the brush and that he directed them toward transportation to a
double-wide trailer where more than 50 aliens were kept in overcrowded and
unsanitary conditions. He fails to show that the district court committed clear
error by imposing these two increases.
      “To qualify as a minor participant, a defendant must have been
peripheral to the advancement of the illicit activity.” United States v. De Jesus-
Batres, 410 F.3d 154, 163 (5th Cir. 2005) (internal quotation marks and
citation omitted). Fortanel-Ocampo had the burden of proving that his role in
the offense was minor. See id. The unrebutted facts show that Fortanel-
Ocampo was in charge of the aliens while they were hiding in the brush and
that he provided them with basic directions about hiding and boarding the
vehicles that would take them to the trailer. Fortanel-Ocampo personally
transported at least one illegal alien, and was carrying more than $2400 when
arrested. He offers only his bare conclusion that these acts show he “was no
leader or average player, but rather a minor subordinate assigned simple tasks
by his bosses.” He did not prove he was merely peripheral to the scheme. See
De Jesus-Batres, 410 F.3d at 163. He thus fails to show that the district court
committed clear error by declining to reduce his offense level for being a minor
participant. See id. at 164.
      Fortanel-Ocampo shows no clear, reversible error.        The judgment is
AFFIRMED.




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