     Case: 14-41250      Document: 00513161083         Page: 1    Date Filed: 08/19/2015




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

                                    No. 14-41250
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                          August 19, 2015
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

AGUSTIN ZUNIGA, also known as Tino Latino,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:14-CR-250


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Agustin Zuniga appeals his above-guidelines sentence imposed following
his guilty plea conviction for conspiracy to possess less than 500 grams of
cocaine and for possession of less than 500 grams of cocaine. He challenges the
conclusion that he used his minor children to avoid detection of the offense,
justifying a two-level enhancement under U.S.S.G. § 3B1.4. The determination
of whether Zuniga used his minor children within the meaning of § 3B1.4 is a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41250

conclusion of law that we review de novo, with any findings of fact made in
support of that determination reviewed for clear error. United States v. Mata,
624 F.3d 170, 175 (5th Cir. 2010). A finding is not clearly erroneous if it is
“plausible in light of the record as a whole.” Id. at 173 (internal quotation
marks and citations omitted).
      Section 3B1.4 calls for a two-level enhancement, “[i]f the defendant used
or attempted to use a person less than eighteen years of age to commit the
offense or assist in avoiding detection of, or apprehension for, the offense . . . .”
The enhancement applies “when a defendant ‘makes a decision to bring a
minor along during the commission of a previously planned crime as a
diversionary tactic or in an effort to reduce suspicion . . . .’” United States v.
Powell, 732 F.3d 361, 380 (5th Cir. 2013) (quoting Mata, 624 F.3d at 175). “To
trigger the enhancement, a defendant must take some affirmative action to
involve the minor in the offense because the mere presence of a minor at the
scene of the crime is insufficient.” Powell, 732 F.3d at 380 (internal quotation
marks and citation omitted). “When a defendant’s crime is previously planned
—when, for example, she leaves the house knowing she is on her way to
smuggle drugs . . . —the act of bringing the child along instead of leaving the
child behind is an affirmative act that involves the minor in the offense.” Mata,
624 F.3d at 176.
      In this case, circumstantial evidence supports a finding that Zuniga used
his minor children to assist in avoiding detection of the offense. First, there is
evidence that Zuniga believed that the presence of his children would assist
him in avoiding detection. See Powell, 732 F.3d at 380-81. Zuniga selected a
grocery store parking lot as the location of the meeting, and he knew when he
left his home with his two minor children that he would be conducting an
illegal narcotics transaction. The district court found that Zuniga had chosen



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                                  No. 14-41250

to bring his two minor children with him to give the appearance of a family
going grocery shopping and to seem less suspicious in the event of a traffic stop.
Second, Zuniga did not have a plausible alternative reason for bringing the
children other than to assist in avoiding detection. See id. After picking up
three children from school and returning home, one child went inside the house
and the other children remained in the vehicle. Shortly thereafter, Zuniga
drove to the grocery store and conducted the transaction. As in Mata, the
district court found that Zuniga could have left the two children with the
person caring for the child who exited the vehicle. Mata, 624 F.3d at 177. The
district court’s findings are plausible in light of the record as a whole. See id.
at 173.
      Taken together, these findings provide sufficient support for the district
court’s conclusion that Zuniga used the presence of his minor children to assist
in avoiding detection of his offense. The district court did not err by enhancing
Zuniga’s sentence under § 3B1.4. Moreover, any error was likely harmless as
the district court expressly stated it would have imposed the same above-
Guidelines sentence even without this enhancement.             Accordingly, the
judgment of the district court is AFFIRMED.




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