     Case: 09-40949     Document: 00511158771          Page: 1    Date Filed: 06/29/2010




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

                                                 FILED
                                                                            June 29, 2010
                                     No. 09-40949
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

RICARDO PEREZ-TORRES,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 6:09-CR-21-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Ricardo Perez-Torres appeals the sentence imposed following his jury
conviction on three counts of transporting illegal aliens within the United States
by means of a motor vehicle in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and
(a)(1)(B)(ii). He contends that the district court plainly erred by not reducing his
offense level pursuant to U.S.S.G. § 2L1.1(b)(1) because the evidence at trial and
the facts in the presentence report were insufficient to support a finding that the
offenses were committed for profit. Because Perez-Torres did not object to the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40949    Document: 00511158771 Page: 2        Date Filed: 06/29/2010
                                 No. 09-40949

lack of a § 2L1.1(b)(1) reduction in the district court, we review for plain error.
See United States v. Alvarado-Santilano, 434 F.3d 794, 795 (5th Cir. 2005).
      The Government was not required to show, either at trial or at sentencing,
that the alien transportation offenses were committed for profit. See United
States v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir. 1989).. Rather, in order to
qualify for the § 2L1.1(b)(1) reduction, Perez-Torres bore the burden of showing
that the offenses were committed other than for profit. See id.
      The record shows that the aliens made arrangements with unknown
individuals to be smuggled into the United States and taken to Houston, Texas,
in exchange for $1,200 or $ 1,300. After crossing into the United States, a guide
led the aliens to a Valero gas station in Alice, Texas. The aliens were told to
wait at the station and that someone would pick them up. Approximately 15 to
20 minutes later, Perez-Torres arrived at the Valero station and told the aliens
to get into his vehicle. The aliens expected to pay the smuggling fee following
their arrival in Houston. Nothing about these facts or any other evidence
presented at trial supports an inference that Perez-Torres transported the aliens
for any reason other than profit. Further, although there was no direct evidence
that Perez-Torres was paid or was going to be paid for transporting the aliens
to Houston, there was circumstantial evidence that he knowingly participated
in an alien smuggling operation in which other members either received or
expected to receive money. Thus, a finding that the alien transportation offenses
were committed for profit is plausible in light of the record read as a whole and
not clearly erroneous. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). Moreover, whether Perez-Torres transported the aliens for profit
is a factual question that could have been resolved by the district court had
Perez-Torres raised the proper objection. See Cuellar-Flores, 891 F.2d at 93.
Because Perez-Torres failed to object to the presentence report on this basis, he
has not demonstrated that the district court plainly erred by not reducing his



                                         2
   Case: 09-40949   Document: 00511158771 Page: 3        Date Filed: 06/29/2010
                                No. 09-40949

offense level pursuant to § 2L1.1(b)(1). See United States v. Lopez, 923 F.2d 47,
50 (5th Cir. 1991). Accordingly, the district court’s judgment is AFFIRMED.




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