     Case: 13-50179      Document: 00512577233         Page: 1    Date Filed: 03/28/2014




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

                                    No. 13-50179                                     FILED
                                  Summary Calendar                             March 28, 2014
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESUS ARMANDO SORIANO-SILVA, also known as Jose Armando Soriano-
Silva

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-1352-4


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jesus Armando Soriano-Silva appeals the total 36-month sentence he
received after a jury convicted him of conspiracy to bring and to attempt to
bring aliens without authorization to the United States for financial gain
(Count One) and aiding and abetting (Count Two), conspiracy to transport and
attempt to transport illegal aliens within the United States for financial gain



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50179

(Count Three), conspiracy to harbor and attempt to harbor illegal aliens for
financial gain (Count Four), conspiracy to encourage and induce the illegal
entry of aliens for financial gain (Count Five), and transporting and attempting
to transport illegal aliens for financial gain (Count Six). Soriano-Silva argues
(1) that the evidence was insufficient to sustain any of his six convictions and
(2) that the district court erred (a) in calculating the number of aliens
attributable to him, (b) in overruling his objection to the lack of a minor role
reduction, and (c) in allowing hearsay testimony.
      We review preserved challenges to the sufficiency of the evidence de
novo. United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). Regarding
Counts One, Two, Three, Four, and Six, the record is replete with evidence
demonstrating that Soriano-Silva had knowledge of and voluntarily
participated in a conspiracy that involved bringing in, transporting, and
harboring unauthorized aliens. See United States v. Mitchell, 484 F.3d 762,
768 (5th Cir. 2007); United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir.
2002); United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992). Accordingly,
Soriano-Silva’s sufficiency arguments are without merit as to Counts One,
Two, Three, Four and Six. See United States v. Lopez-Moreno, 420 F.3d 420,
437-38 (5th Cir. 2005); United States v. Casilla, 20 F.3d 600, 603 (5th Cir.
1994). Regarding Count Five, viewed in the light most favorable to the verdict,
the evidence demonstrates that Soriano-Silva participated in a conspiracy and
knew or recklessly disregarded the fact that his conduct encouraged or induced
illegal aliens to enter or remain in the country. See 8 U.S.C. § 1324(a)(1)(A)(iv);
United States v. Chon, 713 F.3d 812, 818 (5th Cir.), cert. denied, 134 S. Ct. 255
(2013); Lopez-Moreno, 420 F.3d at 437-38.
      The district court’s calculation of the number of illegal aliens
attributable to a defendant is a finding of fact that we review for clear error.



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                                  No. 13-50179

See United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009); United States
v. Cabrera, 288 F.3d 163, 168-69 (5th Cir. 2002). Given the evidence presented
at trial and the lack of direct evidence to rebut the reliability of the information
contained in the presentence report, the district court did not clearly err in
attributing 38 undocumented aliens to Soriano-Silva. See United States v.
Ford, 558 F.3d 371, 376-77 (5th Cir. 2009); United States v. Betancourt, 422
F.3d 240, 247 (5th Cir. 2005); Cabrera, 288 F.3d at 168-69.
      Whether     Soriano-Silva    was   a   minor    participant   is   a   factual
determination that we review for clear error. See United States v. Villanueva,
408 F.3d 193, 203 (5th Cir. 2005). Soriano-Silva does not establish that he
played a “substantially less culpable” role than the “average participant” in the
illegal alien smuggling organization. Id. at 203-04. Accordingly, the district
court’s finding that Soriano-Silva was not deserving of a minor role adjustment
is not clearly erroneous. See United States v. Garcia, 242 F.3d 593, 598-99 (5th
Cir. 2001); United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995).
      A district court’s evidentiary decisions are reviewed for abuse of
discretion and are subject to a harmless error analysis.         United States v.
Crawley, 533 F.3d 349, 353 (5th Cir. 2008). The testimony of which Soriano-
Silva complains was not hearsay. See United States v. Dunigan, 555 F.3d 501,
507 (5th Cir. 2009); FED. R. EVID. 801(c). Moreover, Soriano-Silva cannot
demonstrate that any alleged error affected his substantial rights.             See
Crawley, 533 F.3d at 353; United States v. Cornett, 195 F.3d 776, 785 (5th Cir.
1999). The judgment of the district court is AFFIRMED.




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