     Case: 15-40145      Document: 00513279287         Page: 1    Date Filed: 11/19/2015




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

                                    No. 15-40145                                  FILED
                                  Summary Calendar                        November 19, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

NEREO LOPEZ-PEREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:14-CR-84


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Nereo Lopez-Perez pled guilty to one count of conspiracy to harbor an
undocumented alien for financial gain and to three counts of harboring an
undocumented alien.          The district court sentenced Lopez-Perez to four
concurrent terms of 34 months of imprisonment and to a three-year term of
supervised release on each count. He argues that the district court erred in
applying the leadership-role adjustment under U.S.S.G. § 3B1.1(a) because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40145

there was no evidence of five or more knowing participants in the smuggling
operation. He also alleges that he was a low-level manager, rather than an
organizer or leader, of the operation. Finally, Lopez-Perez avers that the
adjustment rendered his sentence substantively unreasonable.
      Section 3B1.1(a) provides for a four-level increase in the base offense
level where “the defendant was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise extensive.” § 3B1.1(a).
Whether a defendant is a leader for purposes of an adjustment under
Section 3B1.1(a) is a finding of fact reviewed for clear error. United States v.
Gonzales, 436 F.3d 560, 584 (5th Cir. 2006). A factual finding is not clearly
erroneous so long as it is “plausible in light of the record as a whole.” United
States v. Njoku, 737 F.3d 55, 77 (5th Cir. 2013) (citation and quotation marks
omitted), cert. denied, 134 S. Ct. 2319 (2014).
      The Guidelines define a participant as “a person who is criminally
responsible for the commission of the offense, but need not have been
convicted.” § 3B1.1 cmt. n.1. Lopez-Perez recruited and paid individuals to
receive domestic and international wire transfers related to the smuggling
operation.   Two individuals, Viridiana Lopez and Jose Daniel Salazar-
Ambrosio (participants #1 and #2), confirmed their knowledge of his
involvement in an alien smuggling operation. Lopez-Perez paid Salazar to
monitor the undocumented aliens at a stash house.            When Salazar was
unavailable, another man (participant #3) would watch over the aliens. In
addition, every several weeks, an unknown person (participant #4) dropped off
and picked up approximately four to six undocumented aliens from the house.
Agents also discovered text messages to Lopez-Perez from an unknown
individual (participant #5) inquiring about money, the moving of people, and
the crossing of the Rio Grande. Finally, Lopez-Perez, himself, may be counted



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                                 No. 15-40145

as a participant in the criminal activity (participant #6). United States v.
Barbontin, 907 F.2d 1494, 1498 (5th Cir. 1990).        Therefore, the evidence
established at least five knowing participants in the smuggling operation.
Moreover, the remaining individuals who received the wire transfers were
recruited either directly by Lopez-Perez or through individuals directly
associated with him. Given that several of these people stated that “Amigo,”
later identified as Lopez-Perez, would pay them for their services, the district
court’s finding that they were aware or suspected that the wire transfers were
related to criminal activity was plausible in light of the record as a whole. See
Njoku, 737 F.3d at 77.
      This court also may affirm on any alternative ground apparent from the
record. Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992). Regardless
of whether there were five or more knowing participants, the Section 3B1.1(a)
adjustment applies when the criminal activity was “otherwise extensive.”
According to the commentary, “[i]n assessing whether an organization is
‘otherwise extensive,’ all persons involved during the course of the entire
offense are to be considered” even if the criminal operation used the
“unknowing services of many outsiders.” § 3B1.1 cmt n.3. Therefore, even
assuming that the individuals who received the wire transfers were unaware
of participating in criminal acts, the smuggling operation relied on their
services and, thus, the district court did not clearly err in applying the
leadership-role adjustment. See United States v. Glinsey, 209 F.3d 386, 396
(5th Cir. 2000).
      Lopez-Perez did not argue in the district court that he was only a
manager and that the leadership-role adjustment rendered his sentence
substantively unreasonable. Therefore, we will review these arguments for
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). Plain error



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                                  No. 15-40145

requires an error that is clear or obvious and affects a defendant’s substantial
rights. See id. If those requirements are met, we have the discretion to correct
the error if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” See id (citation and quotation marks omitted).
      In determining whether a defendant was a leader, a court should
consider, among other things, the exercise of decision-making authority, the
nature and scope of illegal activity, the nature of participation, the degree of
participation in planning or organizing the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the crime, and
the degree of control and authority over others. United States v. Valdez, 453
F.3d 252, 262−63 (5th Cir. 2006) (quoting § 3B1.1, cmt n.4).
      Lopez-Perez recruited, paid, and transported individuals to receive
international and domestic wire transfers. Homeland Security Investigations
agents confirmed that he was responsible for 121 transactions in which over
$100,000 was transmitted to pay smuggling fees.             Lopez-Perez paid an
individual to monitor the stash house and delivered food and drinks for the
aliens. He also received text messages inquiring about money, the moving of
people, and the crossing of the Rio Grande. Based on this evidence, the district
court did not plainly err in finding that Lopez-Perez was an organizer or leader
of the smuggling operation. See Puckett, 556 U.S. at 135.
      Finally, Lopez-Perez argues that application of the leadership-role
adjustment rendered his sentence substantively unreasonable. However, no
error, plain or otherwise, occurred in the application of the leadership-role
adjustment under Section 3B1.1(a). Thus the presumption of reasonableness
that is accorded his within-guidelines sentence has not been rebutted. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.



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