     Case: 12-20317       Document: 00512136827         Page: 1     Date Filed: 02/06/2013




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

                                                                            FILED
                                                                         February 6, 2013
                                     No. 12-20317
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE LUIS HERNANDEZ-GOMEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-683-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jose Luis Hernandez-Gomez pleaded guilty to one count of conspiracy and
two counts of harboring illegal aliens for the purpose of commercial advantage
and private financial gain. The district court sentenced Hernandez-Gomez to 37
months of imprisonment on each of the three counts, with the terms to run
concurrently. In determining this sentence, the district court adjusted upward
his base offense level by two levels, pursuant to U.S.S.G. § 2L1.1(b)(5)(C),



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20317        Document: 00512136827      Page: 2    Date Filed: 02/06/2013

                                    No. 12-20317

because Hernandez-Gomez possessed a firearm in relation to the offenses. On
appeal, Hernandez-Gomez argues that this finding was clearly erroneous.
      Under the discretionary sentencing system established by United States
v. Booker, 543 U.S. 220 (2005), district courts retain a duty to consider the
Sentencing Guidelines, along with the sentencing factors set forth in 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 518–19 (5th Cir. 2005). “[A]
district court’s interpretation or application of the Sentencing Guidelines is
reviewed de novo, and its factual findings . . . are reviewed for clear error. There
is no clear error if the district court’s finding is plausible in light of the record as
a whole.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Hernandez-Gomez argues that the evidence that he took the firearm when
he went to work showed only the possibility that the firearm was possessed in
connection with his alien harboring conspiracy rather than his business of
installing countertops. The undisputed evidence is that Hernandez-Gomez was
engaged in alien smuggling for two years, that he “worked” in the enterprise of
alien smuggling, that he purchased a firearm for protection, and that he took the
firearm with him when he went to work. Assuming that the record allows for
the possibility that the firearm could have been used to protect his other
business, this possibility does not make the district court’s factual finding that
the firearm was used in relation to Hernandez-Gomez’s alien smuggling
implausible. See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (holding
that the court of appeals may not reverse a plausible finding even though it
would have weighed the evidence differently). The district court did not clearly
err by finding that Hernandez-Gomez had possessed a firearm in relation to the
offenses of conviction.
      AFFIRMED.




                                           2
