     Case: 14-40532      Document: 00512918315         Page: 1    Date Filed: 01/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40532
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 28, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellee,

v.

JUAN NICOLAS AMADO-REYES,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:13-CR-1384-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Juan Nicolas Amado-Reyes (Amado), who pleaded guilty to harboring
aliens within the United States for private financial gain, argues that the
district court erred by imposing a four-level increase pursuant to U.S.S.G.
§ 2L1.1(b)(5)(B) for brandishing a firearm. Because Amado preserved this
argument in the district court, we review the district court’s factual finding for




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40532        Document: 00512918315          Page: 2    Date Filed: 01/28/2015


                                           No. 14-40532

clear error. 1 “There is no clear error if the district court’s finding is plausible
in light of the record as a whole.” 2
      Section 2L1.1(b)(5)(B) applies if a dangerous weapon was “brandished or
otherwise used.” 3 A dangerous weapon is “brandished” if “all or part of the
weapon was displayed, or the presence of the weapon was otherwise made
known to another person, in order to intimidate that person, regardless of
whether the weapon was directly visible to that person.” 4
      The district court was free to adopt as fact a witness statement contained
in the presentence report that, on one unspecified occasion, Amado made
verbal threats while a gun was visible on his waist. 5 Amado’s denial of such
conduct does not constitute competent rebuttal evidence. 6 Nor do the facts
cited by Amado rebut the evidence relied upon by the district court; the two
other witnesses cited by Amado did not deny that he brandished a firearm, and
the failure of law enforcement officers to find a firearm at the time of Amado’s
arrest does not establish that Amado did not brandish a firearm on a prior
occasion. 7 Amado fails to show clear error. 8 We therefore AFFIRM.




      1   See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      2 Id. (quoting United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (per
curiam)) (internal quotation marks omitted).
      3   U.S.S.G. § 2L1.1(b)(5)(B).
      4   U.S.S.G. § 1B1.1, cmt. n.1(C).
      5   See United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002) (per curiam).
      6   See United States v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998).
      7   See Cabrera, 288 F.3d at 173-75.
      8   See Cisneros-Gutierrez, 517 F.3d at 764.


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