     Case: 10-20682     Document: 00511616070         Page: 1     Date Filed: 09/28/2011




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

                                                                            FILED
                                                                        September 28, 2011
                                     No. 10-20682
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALEX JULCA, also known as El Diablo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-557-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Alex Julca was convicted of one count of conspiracy to harbor, conceal, or
shield from detection aliens and three counts of aiding and abetting the
harboring, concealing, or shielding from detection aliens for the purpose of
private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (v)(I), (v)(II),
(B)(i). Julca challenges the 105-month term of imprisonment imposed by the
district court, contending that the district court reversibly erred by applying a
four-level enhancement for serious bodily injury pursuant to U.S.S.G.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20682    Document: 00511616070      Page: 2   Date Filed: 09/28/2011

                                  No. 10-20682

§ 2L1.1(b)(7)(B), which was based on evidence that several aliens were physically
beaten and sexually abused while they were detained. Julca contends that there
was insufficient evidence to establish that any beatings resulted in serious bodily
injury as that term is defined under the Sentencing Guidelines. Julca further
argues that even though sexual abuse constitutes serious bodily injury, the
conduct should not be attributed to him in this case because it was not
reasonably foreseeable.
      Julca did not argue in the district court that the physical beatings did not
satisfy the definition of “serious bodily injury.” Thus, we review this issue for
plain error. See United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir.
1994). The determination of “serious bodily injury” is a factual determination.
United States v. Garza-Robles, 627 F.3d 161, 169 (5th Cir. 2010); see also United
States v. Price, 149 F.3d 352, 353 (5th Cir. 1998) (holding that the severity of an
injury in a different guidelines context is a question of fact). The record as a
whole supports a finding of “serious bodily injury.” See Garza-Robles, 627 F.3d
at 169. As we affirm on this basis, we need not reach Julca’s argument that the
sexual abuse committed by other members of the conspiracy was not reasonably
foreseeable.
      The judgment of the district court is AFFIRMED.




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