     Case: 18-50768      Document: 00514942443         Page: 1    Date Filed: 05/03/2019




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

                                                                                  FILED
                                    No. 18-50768                               May 3, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALDAIR TORRES-VAZQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:18-CR-104-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Aldair Torres-Vazquez was convicted of aiding and abetting the
transportation or attempted transportation of a non-citizen, in violation of 8
U.S.C. § 1324(a)(1)(A)(ii), (v)(II) and 18 U.S.C. § 2, and he was sentenced to 18
months of imprisonment and two years of supervised release. On appeal,
Torres-Vazquez argues that the district court erred by (1) not applying a three-
level decrease to his offense level pursuant to U.S.S.G. § 2L1.1(b)(1) because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50768

the jury found that he did not act for commercial advantage and private
financial gain; (2) applying a three-level increase pursuant to U.S.S.G.
§ 2L1.1(b)(2)(A) for transporting more than six unlawful immigrants; and (3)
not applying a three-level reduction under U.S.S.G. § 2X1.1(b)(1) on the basis
that he committed an attempt.
      These claims were not raised before the district court; thus, our review
is for plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). When making factual findings to support a sentence, the
district court “may consider any information which bears sufficient indicia of
reliability to support its probable accuracy.” United States v. Zuniga, 720 F.3d
587, 590 (5th Cir. 2013) (internal quotation marks and citation omitted). A
presentence report (PSR) generally has sufficient indicia of reliability, and the
defendant has the burden of rebutting the information contained therein by
showing that it is materially untrue, inaccurate, or unreliable. Id. at 591.
      When an offender violates § 1324(a)(1)(A) “for the purpose of commercial
advantage or private financial gain,” the statutory maximum sentence of
imprisonment increases from five years to 10 years. § 1324(a)(1)(B)(i); see
§ 1324(a)(1)(B)(ii). Section 2L1.1(b)(1) provides for a three-level reduction of a
defendant’s base offense level if, inter alia, his transportation offense “was
committed other than for profit.” § 2L1.1(b)(1). In its verdict, the jury did not
unanimously agree beyond a reasonable doubt that Torres-Vazquez committed
the offense for commercial advantage and private financial gain.          Torres-
Vazquez asserts that the jury’s negative finding on the financial-purpose
element required the court to apply the § 2L1.1(b)(1) reduction. However, “a
jury’s verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence.” United States v. Watts,



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                                 No. 18-50768

519 U.S. 148, 157 (1997).      In this case, the trial evidence, which was
incorporated into the PSR, showed that Torres-Vazquez told Border Patrol
agents that he was to be paid $1,000 for transporting the individuals and that
he needed the money to pay his mortgage. Torres-Vazquez did not meet his
burden to show that the facts contained in the PSR were materially untrue,
inaccurate, or unreliable. See Zuniga, 720 F.3d at 591. Therefore, the district
court was entitled to rely on the facts in the PSR, which indicated that Torres-
Vazquez expected payment for the transportation of the individuals. See id.
Further, to the extent that Torres-Vazquez argues that he did not receive any
payment, the commentary to the Guideline requires only an “expectation of
payment.” § 2L1.1, cmt. n.1. Accordingly, the district court did not plainly err
by not reducing the base offense level by three pursuant to § 2L1.1(b)(1)(A).
      Torres-Vazquez also challenges the district court’s application of
§ 2L1.1(b)(2) based on its determination that the offense involved more than
six undocumented immigrants. The undisputed facts in the PSR show that
Torres-Vazquez aided and abetted an undocumented immigrant smuggling
venture and engaged in joint criminal activity that involved between six and
24 undocumented individuals. See Zuniga, 720 F.3d at 591; see also United
States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007) (defining aiding and
abetting); U.S.S.G. § 1B1.3(a)(1) (discussing relevant conduct).        Because
Torres-Vazquez did not introduce any evidence to show that the PSR was
materially untrue, inaccurate, or unreliable, the district court was entitled to
rely on the facts in the PSR showing that Torres-Vazquez aided and abetted a
smuggling venture that involved between six and 24 undocumented
individuals. See Zuniga, 720 F.3d at 591. The district court did not plainly err
in finding that the offense involved more than six undocumented immigrants
and applying § 2L1.1(b)(2).



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                                  No. 18-50768

      Finally, Torres-Vazquez argues that the district court should have
applied § 2X1.1, which covers attempts, solicitations, and conspiracies, and
specifically should have applied the three-level decrease provided for in §
2X1.1(b)(1). The facts in the PSR reflect that Torres-Vazquez, by associating
with the smuggling venture, aided and abetted reasonably foreseeable joint
criminal   activity:   the   transportation    of    Gallego-Marcos     and    other
undocumented individuals across the border and through Texas. See Pando
Franco, 503 F.3d at 394. Torres-Vazquez did not rebut the facts in the PSR by
providing evidence that he aided and abetted an attempt rather than a
completed offense. See Zuniga, 720 F.3d at 591; see also United States v.
Sanchez, 667 F.3d 555, 561-62 (5th Cir. 2012) (defining criminal attempt).
Further, even if we assume that Torres-Vazquez’s offense was simply an
attempt offense, he has not demonstrated that the district court plainly erred
by not applying the reduction. Section 2X1.1(b)(1) does not apply where “the
circumstances demonstrate that the defendant was about to complete all [the
acts he believed necessary for successful completion of the substantive offense]
but for apprehension or interruption by some similar event beyond the
defendant’s control.” § 2X1.1(b)(1). The record shows that Torres-Vazquez
made substantial progress toward completing the offense and that the only
step remaining was the actual transportation of the undocumented
individuals. See United States v. John, 597 F.3d 263, 283 (5th Cir. 2010);
United States v. Waskom, 179 F.3d 303, 308-09 (5th Cir. 1999).                Torres-
Vazquez’s offense was “interrupted or prevented on the verge of completion by
the intercession of law enforcement authorities,” and therefore the district
court did not plainly err in its failure to apply the three-level decrease. § 2X1.1,
cmt. backg’d.
      Accordingly, the judgment of the district court is AFFIRMED.



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