     Case: 09-20577     Document: 00511120533          Page: 1    Date Filed: 05/25/2010




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

                                                  FILED
                                                                            May 25, 2010
                                     No. 09-20577
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

AGUSTIN GONZALEZ-MENDOZA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-191-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Agustin Gonzalez-Mendoza appeals the 40-month sentence imposed
following his guilty-plea conviction of conspiracy to transport and harbor
unlawful aliens. See 8 U.S.C. § 1324. He contends the district court erred by
finding his offense involved 25–99 unlawful aliens and imposing the resulting
six-level enhancement to his offense level. See U.S.S.G. § 2L1.1(b)(2)(B).
        Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20577

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, 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). Accordingly, we review only for clear
error the challenged factual finding that Gonzalez was responsible for at least
25 unlawful aliens.
      As the presentence investigation report (PSR) noted, Gonzalez stated he
was paid $300 for each load of aliens. He did not receive the money at first;
rather, it was deducted from the $2,200 he owed for his own smuggling fee (he
entered illegally in December 2008). Gonzalez received $3,000 beyond that
repayment, and he conceded he had been working off his debt for several months
before he was arrested. Gonzalez also admitted that, beginning in February
2009, one to two loads of two to ten unlawful aliens arrived weekly.
Additionally, the PSR included information from which the district court could
determine that at least some of the loads exceeded the minimum of two unlawful
aliens and that some of the unlawful aliens from those loads had been released;
thus, the 17 found at the time of Gonzalez’s arrest did not constitute the total
number of aliens for which Gonzalez was responsible. In sum, information in
the PSR supported the district court’s finding Gonzalez responsible for at least
25 unlawful aliens.
      Because Gonzalez failed to provide rebuttal evidence, the district court
was entitled to rely on the information in the PSR. E.g., United States v. Ford,
558 F.3d 371, 377 (5th Cir. 2009) (“In making its factual findings for sentencing,
a district court may adopt the findings of the PSR without additional inquiry if
those facts have an evidentiary basis with sufficient indicia of reliability and the
defendant does not present rebuttal evidence or otherwise demonstrate that the
information is materially unreliable.” (quoting United States v. Valles, 484 F.3d

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                                 No. 09-20577

745, 759 (5th Cir. 2007))). In that regard, the district court’s determination that
Gonzalez was responsible for 25 or more unlawful aliens was plausible in the
light of the record as a whole and, therefore, was not clearly erroneous. E.g.,
United States v. Betancourt, 422 F.3d 240, 245–46 (5th Cir. 2005).
      AFFIRMED.




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