     Case: 15-41148   Document: 00513572232   Page: 1   Date Filed: 06/29/2016




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


                              No. 15-41148                             FILED
                            Summary Calendar                       June 29, 2016
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

LEWIS BREWSTER, also known as Guicho,

                                         Defendant-Appellant


Consolidated w/ No. 15-41188

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

LEWIS BREWSTER,

                                         Defendant-Appellant


                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 7:15-CR-354-7
                          USDC No. 7:09-CR-1702-1
     Case: 15-41148       Document: 00513572232         Page: 2    Date Filed: 06/29/2016


                                      No. 15-41148
                                    c/w No. 15-41188

Before JOLLY, WIENER, and COSTA, Circuit Judges.
PER CURIAM: *
       Lewis Brewster pleaded guilty to conspiring to transport aliens within
the United States and was sentenced to serve 27 months in prison. That
immigration offense also resulted in the revocation of his supervised release
on an earlier federal drug conviction. The court sentenced Brewster to the
same 27 month sentence for the supervised release violation and ordered the
sentences to run concurrently.
       In these consolidated appeals, 1 Brewster challenges the district court’s
finding that his new offense involved between 25 and 99 aliens, which resulted
in a six-point enhancement to his offense level under U.S.S.G. § 2L1.1(b)(2)(B).
He maintains that he was responsible for only 15 aliens and argues that the
district court erred by relying on wire intercepts in determining the number of
aliens.
       The calculation of the number of illegal aliens involved in an offense is a
finding of fact that we review for clear error. United States v. Williams, 610
F.3d 271, 292 (5th Cir. 2010). A factual finding that is plausible in light of the
record as a whole is not clearly erroneous and will be upheld. United States v.
Alaniz, 726 F.3d 586, 618 (5th Cir. 2013).
       Our review of the record shows that the district court’s finding
concerning the number of aliens involved with Brewster’s offense is plausible


       * 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.

       1 Brewster filed a notice of appeal from the revocation proceeding and the appeals
were consolidated. In his brief, however, he does not raise any argument challenging the
revocation order or resulting sentence. Although the 27-month revocation sentences was the
same as the sentence for the new offense, the Guideline for the revocation did not include an
enhancement for the number of aliens smuggled.


                                             2
    Case: 15-41148     Document: 00513572232      Page: 3   Date Filed: 06/29/2016


                                  No. 15-41148
                                c/w No. 15-41188

and thus not clearly erroneous. See Alaniz, 726 F.3d at 618. The PSR’s
recitation of facts, which was not rebutted by Brewster and which was adopted
by the district court, supports the disputed finding and shows that it is
plausible that the offense involved more than 25 aliens. See Alaniz, 726 F.3d
at 618. Brewster has not shown clear error in connection with the district
court’s finding concerning the number of aliens involved with his offense.
      Insofar as Brewster argues that the district court erred by relying on
facts outside of the presentence report when determining the number of aliens,
this claim is reviewed for plain error only due to his failure to present it to the
district court. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009); Puckett v. United States, 556 U.S. 129, 135 (2009).          The
disputed wiretap evidence was a foundation for the facts given in the
presentence report, and Brewster has not shown plain error in connection with
this argument.
      AFFIRMED.




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