     Case: 11-41379     Document: 00511987928         Page: 1     Date Filed: 09/14/2012




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

                                                                            FILED
                                                                        September 14, 2012
                                     No. 11-41379
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GENARO GOMEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1156-5


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
        Genaro Gomez pleaded guilty to conspiring to harbor illegal aliens in
violation of 8 U.S.C. § 1324, and he received the statutory maximum 120-month
sentence. On appeal, he challenges the district court’s denial of a downward
adjustment for acceptance of responsibility, and he argues that the district court
erred by enhancing his sentence based the deaths of two aliens and a member
of the conspiracy and on his role in the offense.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-41379    Document: 00511987928      Page: 2   Date Filed: 09/14/2012

                                  No. 11-41379

        Gomez asserts that the sentencing court did not allow him an allocution,
thereby depriving him of an opportunity to accept responsibility. This assertion
is unsupported by the record as the court fully accorded Gomez his right of
allocution. The court denied an adjustment for acceptance of responsibility
because, after pleading guilty, Gomez denied his involvement in the offense until
the eve of sentencing. He has not shown that the district court’s denial of a
reduction for acceptance of responsibility is without foundation. United States
v. Thomas, 120 F.3d 564, 574-75 (5th Cir. 1997).
        The sentencing court made exhaustive factual findings in support of its
determination that the three deaths were reasonably foreseeable. Specifically,
the court found that all members of the conspiracy knew that the aliens were to
be trekked on foot through the brush in the middle of summer. The trip was
intended to take two or three days, which in itself presented danger, but it was
foreseeable that they could be stranded in the brush for a longer period. Because
the aliens were required to travel through the brush in “extremely hot” weather
without sufficient food or water, the court further found it reasonably foreseeable
that members of the party might go in search of help, find a rural road and
collapse out of exhaustion, and be struck and killed by a motorist who did not see
them.
        These findings are plausible in light of the record as a whole, and they
certainly do not give rise to a “firm and definite conviction” that the sentencing
court was mistaken. See United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir.
2011); United States v. De Jesus-Ojeda, 515 F.3d 434, 442 (5th Cir. 2008). We
likewise find no clear error in the assessment of a sentence enhancement based
on Gomez’s role in the offense. See United States v. Caldwell, 448 F.3d 287, 290
(5th Cir. 2006).
        AFFIRMED.




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