     Case: 14-41035      Document: 00513077959         Page: 1    Date Filed: 06/15/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 14-41035                                 FILED
                                  Summary Calendar                           June 15, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAFAEL DE LA CRUZ-BAUTISTA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:14-CR-267


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Rafael De La Cruz-Bautista (De La Cruz) pleaded
guilty, without the benefit of a plea agreement, to conspiring to transport and
harbor aliens and to being found unlawfully in the United States after having
been deported following a felony conviction. He challenges his 46-month prison
sentence, which was at the bottom of the advisory guidelines range, claiming
that it is procedurally and substantively unreasonable.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41035

      De La Cruz contends that the district court erred by enhancing his
offense level for harboring unaccompanied minors and for intentionally or
recklessly creating a substantial risk of death or serious bodily injury. We
review the district court’s application of the Guidelines de novo and its factual
findings for clear error. United States v. Cantu-Ramirez, 669 F.3d 619, 628
(5th Cir. 2012).
      De La Cruz first urges that the district court should not have assessed a
two-level enhancement for harboring a person younger than 16 years old who
is not accompanied by a parent or grandparent. He asserts that the findings
in the presentence report (PSR) are unreliable and that there is a discrepancy
in the number of unaccompanied minors found in one of the stash houses that
he maintained. See U.S.S.G. § 2L1.1(b)(4) & comment. (n.1).
      A district court may adopt the facts contained in a PSR if they have an
adequate evidentiary basis with sufficient indicia of reliability and if the
defendant does not present evidence to rebut them or otherwise demonstrate
that they are unreliable. United States v. Fuentes, 775 F.3d 213, 220 (5th Cir.
2014). The probation officer who prepared the instant PSR consulted the
investigative reports from Department of Homeland Security and the Bureau
of Customs and Border Protection, the case agent for the Department of
Homeland Security, trial testimony, and depositions from material witnesses.
The findings in the PSR were thus based on evidence that was sufficiently
reliable. Cf. id. (explaining that findings in a PSR based on the results of a
police investigation are sufficiently reliable).      Moreover, De La Cruz
acknowledges that he did not adduce evidence to rebut those findings. The
PSR did contain a discrepancy as to whether De La Cruz housed two or three
unaccompanied minors, but only one is required to trigger the enhancement,




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                                  No. 14-41035

see § 2L1.1(b)(4). The precise number of minors that De La Cruz harbored is
immaterial.
      De La Cruz also disputes the two-level enhancement under U.S.S.G.
§ 2L1.1(b)(6) for intentionally or recklessly creating a substantial risk of death
or serious bodily injury. He does not dispute the PSR’s findings that these
aliens were housed in cramped conditions and were forced to sleep standing
up, and that several of them fainted. In fact, the PSR states that De La Cruz
housed as many as 250 aliens in one mobile home.
      The district court agreed that De La Cruz kept the aliens in crowded and
inhumane conditions, noting that they were “packed in like sardines.” De La
Cruz nevertheless insists that these findings are insufficient to support the
enhancement, maintaining that the court was required to make additional
findings that the conditions created a risk of death or serious bodily injury and
had to consider additional factors related to that risk. We disagree. The
commentary to § 2L1.1(b)(6) instructs that “harboring persons in a crowded,
dangerous, or inhumane condition” constitutes the type of reckless
endangerment the Guideline is intended to address. § 2L1.1, comment. (n.5).
The examples in the commentary describe situations that pose “inherent” risks
of danger. See United States v. Mateo Garza, 541 F.3d 290, 293-94 (5th Cir.
2008); United States v. Garcia-Guerrero, 313 F.3d 892, 896 (5th Cir. 2002).
Once the district court found that the conditions were crowded and inhumane,
it was not required to discuss the potential harm that could have resulted from
that inherently dangerous situation or other risks that the aliens faced.
      Finally, challenging his 46-month prison term as substantively
unreasonable, De La Cruz contends that the district court did not sufficiently
consider (1) his lack of education, (2) that he committed the offense because he
was in love with one of his coconspirators, or (3) “all the other information



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                                  No. 14-41035

contained in the PSR.” De La Cruz did not object to the sentence in the district
court, so our review is for plain error only, see United States v. Powell, 732 F.3d
361, 381 (5th Cir. 2013). His position that the district court should have placed
more emphasis on his personal history and characteristics amounts to a
disagreement with the balance among the various sentencing factors that the
district court struck: We will not reweigh those factors. See United States v.
McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011).              We also note that, at
sentencing, De La Cruz’s counsel requested a 46-month sentence, precisely the
sentence that he received. De La Cruz has not shown that the district court
failed to consider any factor that should have received significant weight, or
that it gave significant weight to a factor that it should have discounted, or
that it made a clear error of judgment when it balanced the relevant factors.
See United States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013).            He has
therefore failed to rebut the presumption that his within-guidelines sentence
is reasonable, much less shown that the district court committed plain error.
See id.
      The judgment of the district court is AFFIRMED.




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