     Case: 09-40805     Document: 00511053511          Page: 1    Date Filed: 03/16/2010




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

                                                  FILED
                                                                           March 16, 2010

                                     No. 09-40805                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee
v.

LARRY DON RHODEN,

                                                   Defendant – Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:09-CR-665-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Larry Don Rhoden pled guilty to two counts of transporting illegal aliens
within the United States for commercial advantage or private financial gain and
was sentenced to concurrent terms of forty-one months’ imprisonment. On
appeal, Rhoden asserts the district court erred in imposing a nine-level




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40805

enhancement pursuant to Sentencing Guidelines section 2L1.1(b)(2)(C).1 The
court applied the enhancement based on Rhoden’s post-arrest statements
included in the presentence investigation report that he had transported
approximately one hundred aliens two days before and had smuggled
undocumented aliens on eight different occasions, transporting between one
hundred and fifty to one hundred and ninety-five per trip. Rhoden contends the
court erred in relying on the statements in the presentence report and that the
government was required to establish by a preponderance of the evidence that
the prior loads occurred and the number of aliens involved in those trips.
       This court reviews the district court’s interpretation and application of the
Sentencing Guidelines de novo and its findings of fact for clear error.2 Whether
the district court properly determined relevant conduct, including “a finding by
the district court that unadjudicated conduct is part of the same course of
conduct,” is a factual finding reviewable for clear error.3 “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.                        The




       1
        U.S.S.G. § 2L1.1(b)(2)(C) (“If the offense level involved the smuggling, transporting
or harboring of six or more unlawful aliens, increase as follows: . . . (C) 100 or more . . . add
9").
       2
           United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
       3
           United States v. Rhine, 583 F.3d 878, 884–885 (5th Cir. 2009).

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                                        No. 09-40805

defendant has the burden of showing that the information relied on by the
district court in the PSR is materially unreliable.”4
       The presentence report based the enhancement on Rhoden’s statement
made after his arrest and after he was informed of his rights under Miranda v.
Arizona.5 Although Rhoden asserts that his post-arrest statements were the
result of nerves and exaggeration, he does not deny that he made the statements
and presents no evidence disputing their substance. The district court did not
err in relying on the statements in the presentence report in applying the
enhancement.
       Rhoden also asserts that the evidence of the prior alien loads does not
constitute relevant conduct because there was no evidence showing “jointly
undertaken criminal activity,” as there was no evidence that the prior loads were
undertaken in concert with the same individuals who participated in the instant
offense. The district court found that the prior incidents constituted relevant
conduct because they were part of the “same course of conduct.” 6 Rhoden’s prior
offenses were sufficiently similar and occurred with sufficient regularity to
establish they were part of the same course of conduct. In addition, Rhoden’s
admission that one prior trip occurred two days prior to the instant offense
reveals a short time interval warranting a finding of relevant conduct.7


       4
         United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009) (internal quotations and
citations omitted).
       5
           384 U.S. 436 (1966).
       6
           U.S.S.G. § 1B1.3(a)(2).
       7
         See United States v. Ocana, 204 F.3d 585, 589–91 (5th Cir. 2000) (“The factors that
are appropriate to weigh in making the determination as to whether the offenses are
sufficiently connected or related include the degree of similarity of the offenses, the regularity

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                                       No. 09-40805

       Rhoden has not established that the district court clearly erred in
imposing the nine-level enhancement; the judgment of the district court is
AFFIRMED.




of the offenses, and the time interval between the offenses.” (internal quotations and citations
omitted)).

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