     Case: 12-41168      Document: 00512530435         Page: 1    Date Filed: 02/12/2014




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

                                                                                FILED
                                    No. 12-41168                        February 12, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ENRIQUE GONZALEZ-CAVAZOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-469-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Enrique Gonzalez-Cavazos was charged with conspiracy to transport
aliens within the United States by means of a motor vehicle and three counts
of transporting aliens within the United States by means of a motor vehicle. A
jury found him guilty of the three transporting counts but acquitted him of the
conspiracy count. The court sentenced him within the advisory guidelines




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-41168

range to 48 months of imprisonment. He now appeals, arguing four points of
error.
         First, Gonzalez-Cavazos argues that the district court erred when it
ruled that the Government could introduce evidence of his 2009 aggravated
assault conviction if he chose to testify. After this ruling, Gonzalez-Cavazos
preemptively testified on direct examination about his prior conviction. “‘[A]
defendant who preemptively introduces evidence of a prior conviction on direct
examination may not on appeal claim that the admission of such evidence was
error.’” United States v. Delgado, 401 F.3d 290, 301 (5th Cir. 2005) (quoting
Ohler v. United States, 529 U.S. 753, 760 (2000)). This issue is without merit.
         Second, Gonzalez-Cavazos argues that the district court erred when it
applied a six-level increase based on its finding that he transported between
25 and 100 aliens. We review a district court’s factual findings at sentencing
for clear error and its application of the Sentencing Guidelines de novo. United
States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013).
         There were ten aliens involved in the instant offense. At the sentencing
hearing, Gonzalez-Cavazos’s codefendant, Julian Cisneros, Jr., testified that
he had transported aliens with Gonzalez-Cavazos about four or five times over
the course of approximately two weeks and that there were eight to ten aliens
in each group transported. Cisneros testified that they used three different
drop-off locations during this time. The district court took note of this and
concluded that even if there had been only one group dropped off at each
location, it would amount to 25 or more aliens. The district court’s finding is
plausible in light of the record as a whole and is thus not clearly erroneous.
         Third, Gonzalez-Cavazos argues that the district court erred when it
applied a six-level enhancement under U.S.S.G. § 2L1.1(b)(6) and a two-level
enhancement under § 3C1.2 because the enhancements were based on the



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                                  No. 12-41168

same conduct.     The commentary to § 2L1.1 provides, “If subsection (b)(6)
applies solely on the basis of conduct related to fleeing from a law enforcement
officer, do not apply an adjustment from § 3C1.2 (Reckless Endangerment
During Flight).” § 2L1.1 comment. (n.5).
      The district court explained that it applied the § 2L1.1(b)(6)
enhancement because the aliens were put “in the bed of a pickup truck [and]
locked in with the bed cover,” which the district court described as “analogous
to transporting aliens in the trunk of a car.” The district court explained that
it applied the § 3C1.2 enhancement “because it was a high-speed chase, it was
reckless, there were other people on the roadway, and that regardless of the
manner in which these aliens are being transported, the flight itself created a
substantial risk of serious bodily injury or death.” The enhancements were
therefore not based on the same conduct and do not conflict with § 2L1.1’s
application notes or amount to double counting.
      Last, Gonzalez-Cavazos argues that because the jury did not find beyond
a reasonable doubt the he committed the offense for commercial advantage or
financial gain, the district court should have reduced his offense level by three
levels. Section 2L1.1(b)(1) provides for a three-level decrease if the offense was
committed “other than for profit” or for other reasons not applicable here.
“[T]he burden of proof at sentencing is by a preponderance of the evidence.”
United States v. Brooks, 681 F.3d 678, 712 (5th Cir. 2012), cert. denied, 133 S.
Ct. 839 (2013). Cisneros testified at sentencing that he and Gonzalez-Cavazos
were paid to transport the aliens, and the aliens who testified at trial stated
that they paid to be smuggled into the country. Based on this evidence, it is
more likely than not that the offense was committed for profit. The district did
not clearly err in failing to reduce the offense level.




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                                No. 12-41168

     In light of the foregoing, the judgment of the district court is AFFIRMED.
Gonzalez-Cavazos’s motion to expedite the appeal is DENIED.




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