     Case: 09-51164 Document: 00511331201 Page: 1 Date Filed: 12/23/2010




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

                                                 FILED
                                                                         December 23, 2010
                                     No. 09-51164
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee
v.

ALFONSO CORRAL-MARRUFO, also known as Adolfo Corral-Marrufo, also
known as Alfonso, also known as Poncho,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:08-CR-1481-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Alfonso Corral-Marrufo appeals his sentence for aiding and abetting the
bringing of aliens into the United States, resulting in a death, in violation of
8 U.S.C. § 1324. After agreeing to a plea agreement that included an appeal
waiver and an agreement by the Government not to oppose an offense-level
reduction for acceptance of responsibility, Corral-Marrufo changed his mind, and
the case was set for trial.        On the morning of trial, Corral-Marrufo again
changed his mind and accepted the plea agreement.                     As a result of this



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51164 Document: 00511331201 Page: 2 Date Filed: 12/23/2010

                                  No. 09-51164

circumstance, the Government did oppose the acceptance of responsibility
reduction, but it does not seek to enforce the appeal waiver. See United States
v. Story, 439 F.3d 226, 231 (5th Cir. 2006). Thus, we will consider this appeal
despite the initially agreed waiver.
      Corral-Marrufo argues that the district court erred in denying a minor role
reduction under U.S.S.G. § 3B1.2.        His role was central to housing and
transporting the aliens within Mexico and was clearly “coextensive with the
conduct for which he was held accountable.” United States v. Garcia, 242 F.3d
593, 598-99 (5th Cir. 2001). He brought the aliens to meet two unknown guides,
advised them how to crawl through the brush and how to cross the American
Canal and fencing, provided cash to pay an unknown individual for
transportation after they crossed the border, and assured one of the aliens,
Fritman Cardenas-Reyna, that the water in the river was only knee deep.
Cardenas-Reyna later drowned while crossing the river. Even if Corral-Marrufo
did not perform as many acts as his codefendants, his activities were not
peripheral to the advancement of the illicit activity.      See United States v.
Villaneuva, 408 F.3d 193, 203-04 (5th Cir. 2005). The district court did not
clearly err in finding he was not a minor participant. See id.
      Corral-Marrufo argues that the district court failed to consider the
18 U.S.C. § 3553(a) factors. Because he did not raise this issue in the district
court, review is limited to plain error. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009)(listing the factors involved in plain error review). The district
court asked Corral-Marrufo’s counsel to address the § 3553(a) factors; counsel
argued that the court should consider the need to avoid sentencing disparity;
Corral-Marrufo’s humanitarian actions of transporting, feeding, and providing
money to the aliens; and the inhuman conditions he suffered during his eight-
month imprisonment in Mexico. The district court also considered the nature
and circumstances of the offense, in particular the death of one of the aliens, and
Corral-Marrufo’s history and characteristics. We will “infer that the judge has

                                        2
    Case: 09-51164 Document: 00511331201 Page: 3 Date Filed: 12/23/2010

                                  No. 09-51164

considered all the factors for a fair sentence” because the district court imposed
a sentence within the advisory guidelines range. United States v. Mendoza, 587
F.3d 682, 688 (5th Cir. 2009)(internal quotation marks and citation omitted).
Because Corral-Marrufo has not shown that the district court failed to consider
the § 3553(a) factors, he has not shown that the district court committed any
error, plain or otherwise. See Puckett, 129 S. Ct. at 1429.
      AFFIRMED.




                                        3
