     Case: 10-20683     Document: 00511554147         Page: 1     Date Filed: 07/28/2011




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

                                                                            FILED
                                                                            July 28, 2011
                                     No. 10-20683
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FRANCISCO GOMEZ-AGUIRRE, also known as El Cunado, also known as El
Viejo, also known as El Gordo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-557-2


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Francisco Gomez-Aguirre appeals the 52-month sentence imposed
following his guilty-plea conviction of one count of conspiracy to harbor aliens for
private financial gain, and three counts of concealing aliens from detection for
private financial gain. He contends that the district court reversibly erred by
applying a four-level enhancement under U.S.S.G. § 2L1.1(b)(7)(B) on the basis
that the offense involved “serious bodily injury” to the aliens that were detained


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20683    Document: 00511554147       Page: 2    Date Filed: 07/28/2011

                                   No. 10-20683

by him and his co-conspirators. Gomez-Aguirre acknowledges that the aliens
were threatened and beaten, but argues that the harm experienced by the aliens
constituted only “bodily injury,” which warrants only a two-level increase under
§ 2L1.1(b)(7)(A).
      In the district court, Gomez-Aguirre did not preserve an objection that the
harm suffered by the aliens did not constitute “serious bodily injury,” and his
argument is therefore reviewed for plain error. See United States v. Villegas,
404 F.3d 355, 358 (5th Cir. 2005). To establish plain error, Gomez-Aguirre must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes
such a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity or public reputation of judicial
proceedings. Id. (citation omitted).
      The determination whether the harm experienced by the aliens rises to the
level of “serious bodily injury” rather than “bodily injury” is a question of fact.
See United States v. Davis, 19 F.3d 166, 171 (5th Cir. 1994) (noting that the
severity of a victim’s injury is a question of fact); see also United States v. Garza-
Robles, 627 F.3d 161, 169-70 (5th Cir. 2010) (affirming district court’s factual
finding that defendant suffered serious bodily injury). Because the district
judge’s factual finding was plausible in light of the record as a whole, Gomez-
Aguirre fails to establish error, much less plain error. See United States v.
Wilcox, 631 F.3d 740, 753 (5th Cir. 2011)(Even where the objection is preserved,
“the court must determine whether the district court’s conclusion was plausible
in light of the record as a whole” in assessing the propriety of a sentencing
enhancement).
      AFFIRMED.




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