867 F.2d 216 (5th Cir. 1989), 88-5584, United States v. Mejia-Orosco

Docket Nº:88-5584.
Citation:867 F.2d 216
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Juventino MEJIA-OROSCO, Defendant-Appellant.
Case Date:February 17, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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867 F.2d 216 (5th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Juventino MEJIA-OROSCO, Defendant-Appellant.

No. 88-5584.

United States Court of Appeals, Fifth Circuit

February 17, 1989

Rehearing Denied March 31, 1989.[*]

Alfredo Villarreal, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Everberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

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Before CLARK, Chief Judge, HIGGINBOTHAM, Circuit Judge, and LITTLE, [*] District Judge.

CLARK, Chief Judge:

Juventino Mejia-Orosco was convicted of illegally transporting aliens into the United States in violation of 8 U.S.C. Sec. 1324(a)(1)(B). He does not contest the underlying conviction, but argues that the district court imposed an improper sentence. Because the district court correctly applied the guidelines to its factual findings, and because those findings were not clearly erroneous, we affirm.

I

Mejia-Orosco is a citizen of Guatemala. He earns his living trucking curios from Guatemala, through Mexico, to the United States. In April of 1988, on one of his many trips to this country, he brought along Hector Galvencio Paz-Ortega and Carlos Enrique Cruz-Morales, both citizens of Guatemala and purportedly related to Mejia-Orosco. After Mejia-Orosco and his two passengers had travelled through Mexico and arrived in Nuevo Laredo, Tamaulipas, Mexico, Paz-Ortega and Cruz-Morales disembarked.

Mejia-Orosco drove his van across the bridge into Laredo, Texas. Paz-Ortega and Cruz-Morales waded the Rio Grande. They did not pass through customs and had no legal right to enter this country. Mejia-Orosco and the aliens then regrouped and spent two days in Laredo. During this time, the group contacted relatives of the aliens living in the United States. The family members were instructed to wire Mejia-Orosco funds. He received $1,000 from Paz-Ortega's family in Los Angeles and $1,700 from relatives of Cruz-Morales living in New York City. Two days after arriving, the three drove to the Laredo International Airport. Mejia-Orosco supplied the aliens with airline tickets to San Antonio and the key to a motel room there. Later, Mejia-Orosco met the aliens at the motel and drove them to the San Antonio International Airport. At the airport, Paz-Ortega was detained and questioned by immigration officials. He admitted that he and Cruz-Morales had illegally entered the United States with the aid of Mejia-Orosco. With this information, law enforcement officials were able to locate and detain Cruz-Morales, who was aboard an airplane awaiting departure to New York, and Mejia-Orosco. A search of Mejia-Orosco's van uncovered 4,102 United States dollars and 574,000 Mexican pesos.

Mejia-Orosco pled guilty to one count of illegally transporting aliens into the United States. He admits that he received $850 from each of the transported aliens in exchange for his illegal services. He was sentenced to 10 months in prison and fined $4,000. His van, used to transport the aliens from Guatemala, has been seized pending forfeiture proceedings.

The district court calculated the sentence imposed on Mejia-Orosco according to the guidelines promulgated by the United States Sentencing Commission. See 18 U.S.C. Sec. 3553(a). On appeal, Mejia-Orosco argues that the district court erroneously imposed a sentence of 10 months imprisonment. The guidelines, in the defendant's view, would permit a maximum sentence of no more than 7 months. His appeal is specifically authorized by statute. 18 U.S.C. Sec. 3742(a)(2).

II

Our review of the sentence imposed by the district court is governed by 18 U.S.C. Sec. 3742(d) and (e):

(d) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is outside the range of the applicable sentencing guideline, and is unreasonable, having regard for--

(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and

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(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous.

(e) Decision and disposition

If the court of appeals determines that the sentence--

(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;

(2) is outside the...

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