     Case: 09-20735     Document: 00511271083          Page: 1    Date Filed: 10/22/2010




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

                                                 FILED
                                                                          October 22, 2010
                                     No. 09-20735
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EPIFANIO GONZALEZ-MENDOZA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-191-2


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Epifanio Gonzalez-Mendoza appeals his within-guidelines sentence of 37
months, following his guilty plea conviction of conspiracy to transport and
harbor undocumented aliens within the United States in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), (a)(1)(A)(iii), (a)(1)(B)(i), and (a)(1)(A)(v)(I). He argues, as he
did in the district court, that the district court erred when it increased his
offense level by four levels pursuant to U.S.S.G. § 2L1.1(b)(5)(B) based on its
finding that he brandished a firearm during the offense and when it increased

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20735    Document: 00511271083 Page: 2         Date Filed: 10/22/2010
                                 No. 09-20735

his offense level by six levels pursuant to § 2L1.1(b)(2)(B) based on its finding
that he was accountable for transporting or harboring at least 25, but not more
than 99, illegal aliens in the United States. He also argues, for the first time,
that his sentence is substantively unreasonable.
      Sentences are reviewed under an abuse of discretion standard for
procedural error, such as failing to calculate the proper guidelines range, and
substantive reasonableness in light of the 18 U.S.C. § 3553(a) factors. Gall v.
United States, 552 U.S. 38, 51 (2007). Generally, the district court’s application
of the Guidelines is reviewed de novo, and its factual findings are reviewed for
clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). However, if the defendant fails to object in the district court, review is for
plain error. See United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007).
      In the instant case, the PSR indicated that (1) three firearms were seized
from the stash house during the security sweep; (2) one of the smuggled aliens
identified Gonzalez-Mendoza as a guard who carried a semi-automatic handgun;
(3) several of the smuggled aliens saw other firearms in the smugglers’
possession; (4) Gonzalez-Mendoza admitted that he found a firearm hidden in
the sofa, that he inspected it, and that he returned it to where he had found it;
(5) 22 illegal aliens were present at the stash house, including Gonzalez-
Mendoza and his four co-defendants; (6) Gonzalez-Mendoza arrived in the
United States about 20 days prior to the raid and that he had lived in the stash
house since that time; and (7) beginning in February 2009, “at least one to two
loads [of aliens]” comprised of two to ten aliens each arrived at the stash house
every week.
      Gonzalez-Mendoza’s objections to the PSR with respect to the firearms
issue were insufficient to rebut the information contained therein. See United
States v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998); United States v. Vital, 68
F.3d 114, 120 (5th Cir. 1995). Given the PSR, the trial court did not clearly err
in finding that Gonzalez-Mendoza brandished a firearm for purposes of

                                         2
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                                 No. 09-20735

§ 2L1.1(b)(5)(B) or that he harbored or transported at least 25, but fewer than
99, illegal aliens. for purposes of § 2L1.1(b)(2). See Cisneros-Gutierrez, 517 F.3d
at 764; United States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010).
      Gonzalez-Mendoza’s argument regarding the substantive reasonableness
of his sentence, which we also review for plain error, is also without merit. See
Peltier, 505 F.3d at 392. The record reflects that the district court considered
Gonzalez-Mendoza’s arguments for a below-guidelines sentence but ultimately
determined that a sentence at the bottom end of that range was appropriate in
light of the circumstances of the case and the § 3553(a) factors. Gonzalez-
Mendoza essentially seeks to have his sentence vacated based on a reweighing
of the § 3553(a) factors by this court.      However, the fact that we “might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” See Gall, 552 U.S. at 51.
Gonzalez-Mendoza has also failed to rebut the presumption of reasonableness
afforded his within-guidelines sentence. See United States v. Rita, 551 U.S. 338,
347 (2007). Accordingly, Gonzalez-Mendoza has failed to show that the district
court plainly erred in sentencing him to 37 months in prison. See Peltier, 505
F.3d. at 392.
      AFFIRMED.




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