     Case: 15-41284      Document: 00513640658         Page: 1    Date Filed: 08/17/2016




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

                                    No. 15-41284
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         August 17, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

JOSE OLIVARES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-321-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Olivares pleaded guilty to one count of harboring aliens within the
United States for private financial gain, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iii), (v)(II), (B)(i).    The presentence report (PSR) increased
Olivares’s offense level to 20 after application of an enhancement under
U.S.S.G. § 2L1.1(b)(5)(B), noting that three aliens had positively identified
Olivares as the person who brandished a weapon in order to threaten them.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41284

The district court overruled Olivares’s objection to the enhancement and
sentenced him within the advisory guidelines range to 66 months of
imprisonment and a two-year term of supervised release.
      Olivares now contends that the district court erred by applying the
§ 2L1.1(b)(5)(B) enhancement. We review for clear error his challenge to the
sufficiency of the evidence supporting the district court’s factual findings. See
United States v. Reyna-Esparza, 777 F.3d 291, 293-94 (5th Cir. 2015). While
the Government has the burden to prove, by a preponderance of the evidence,
the facts which are necessary to support the enhancement, id. at 294, “[a]s a
general rule, information in the pre-sentence report is presumed reliable and
may be adopted by the district court without further inquiry if the defendant
fails to demonstrate by competent rebuttal evidence that the information is
materially untrue, inaccurate, or unreliable,” United States v. Carbajal, 290
F.3d 277, 287 (5th Cir. 2002) (internal quotation marks and citation omitted).
Olivares thus has the burden to present competent evidence showing that the
facts in the PSR are materially untrue or inaccurate.             United States v.
Cervantes, 706 F.3d 603, 620–21 (5th Cir. 2013).
      Olivares has not made the requisite showing. He first contends that the
photographic    lineup   from    which       the   aliens    identified   him   was
unconstitutionally suggestive because his photograph was the only one in
which the subject had tattoos and facial hair. Because Olivares did not provide
the photographic lineup in connection with his argument, there is no evidence
in the record to support his allegation. “Mere objections do not suffice as
competent rebuttal evidence.” United States v. Solis, 299 F.3d 420, 455 (5th
Cir. 2002) (internal quotation marks and citation omitted).
      Olivares also contends that the aliens incorrectly identified an innocent
person (codefendant Priscilla Gutierrez) from a different photographic lineup



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                                     No. 15-41284

and that the firearm the aliens claimed to have seen was never found. These
statements do not comprise competent rebuttal evidence. The charges against
Gutierrez were dismissed, but there is no indication in the record that the
dismissal occurred because the aliens misidentified Gutierrez or because she
was actually innocent; rather, the record indicates that the photographic
lineup which included Gutierrez was created only after law enforcement had
already found her to be connected to the stash house. The PSR also provided
a reasonable explanation for why the firearm was never found: the stash house
where the aliens were housed was never searched, because the aliens escaped
and were found by law enforcement at a different location. We have upheld
the application of the § 2L1.1(b)(5)(B) enhancement where a firearm was not
recovered from the defendant at the time of arrest.               See United States v.
Cabrera, 600 F. App’x 279, 279-80 (5th Cir.), cert. denied, 136 S. Ct. 2412
(2015). 1
      Olivares has not demonstrated by competent rebuttal evidence that the
facts in the PSR supporting application of the § 2L1.1(b)(5)(B) enhancement
were materially untrue or inaccurate. See Cervantes, 706 F.3d at 620-21.
Accordingly, he has not shown that the district court clearly erred in applying
the enhancement. See Reyna-Esparza, 777 F.3d at 293-94.
       AFFIRMED.




      1  Although unpublished opinions are not precedential, they are persuasive. See
Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (recognizing that unpublished
decisions issued after January 1, 1996, are not controlling precedent but may be considered
persuasive authority).


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