Case: 18-50768 Document: 00514942443 Page: 1 Date Filed: 05/03/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-50768 May 3, 2019 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALDAIR TORRES-VAZQUEZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 4:18-CR-104-1 Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Aldair Torres-Vazquez was convicted of aiding and abetting the transportation or attempted transportation of a non-citizen, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II) and 18 U.S.C. § 2, and he was sentenced to 18 months of imprisonment and two years of supervised release. On appeal, Torres-Vazquez argues that the district court erred by (1) not applying a three- level decrease to his offense level pursuant to U.S.S.G. § 2L1.1(b)(1) because * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-50768 Document: 00514942443 Page: 2 Date Filed: 05/03/2019 No. 18-50768 the jury found that he did not act for commercial advantage and private financial gain; (2) applying a three-level increase pursuant to U.S.S.G. § 2L1.1(b)(2)(A) for transporting more than six unlawful immigrants; and (3) not applying a three-level reduction under U.S.S.G. § 2X1.1(b)(1) on the basis that he committed an attempt. These claims were not raised before the district court; thus, our review is for plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). When making factual findings to support a sentence, the district court “may consider any information which bears sufficient indicia of reliability to support its probable accuracy.” United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (internal quotation marks and citation omitted). A presentence report (PSR) generally has sufficient indicia of reliability, and the defendant has the burden of rebutting the information contained therein by showing that it is materially untrue, inaccurate, or unreliable. Id. at 591. When an offender violates § 1324(a)(1)(A) “for the purpose of commercial advantage or private financial gain,” the statutory maximum sentence of imprisonment increases from five years to 10 years. § 1324(a)(1)(B)(i); see § 1324(a)(1)(B)(ii). Section 2L1.1(b)(1) provides for a three-level reduction of a defendant’s base offense level if, inter alia, his transportation offense “was committed other than for profit.” § 2L1.1(b)(1). In its verdict, the jury did not unanimously agree beyond a reasonable doubt that Torres-Vazquez committed the offense for commercial advantage and private financial gain. Torres- Vazquez asserts that the jury’s negative finding on the financial-purpose element required the court to apply the § 2L1.1(b)(1) reduction. However, “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 2 Case: 18-50768 Document: 00514942443 Page: 3 Date Filed: 05/03/2019 ...
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