U.S. v. Cabrera

• Decision Date: 03 April 2002
• Docket Number: No. 01-20501.,No. 01-20497.,01-20497.,01-20501.
• Citation: 288 F.3d 163
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nobelda CABRERA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Leda Cabrera, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F.3d 163

UNITED STATES of America, Plaintiff-Appellee, v. Nobelda CABRERA, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Leda Cabrera, Defendant-Appellant.

No. 01-20497.

No. 01-20501.

United States Court of Appeals, Fifth Circuit.

April 3, 2002.

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Mitchel Neurock, Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Colin Bryan Amann, Gaither & Amann, Houston, TX, for Nobelda Cabrera.

Julie A. Ketterman, Law Office of Julie A. Webb, Houston, TX, for Leda Cabrera.

Appeals from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, and GARWOOD and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Defendants-Appellants Nobelda and Leda Cabrera were convicted under 18 U.S.C. § 371 (1994) of conspiracy to encourage or induce illegal immigrants to come to, enter, or reside in the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) (1994). In this consolidated appeal, Nobelda and Leda Cabrera urge this court to vacate their sentences and remand for resentencing on the ground that the district court committed three errors in calculating the total offense levels on which their sentences are based. They argue that the district court improperly (1) increased their offense levels based on the erroneous finding that the offense involved the smuggling of twenty-five or more illegal immigrants into the United States, (2) increased their offense levels based on the erroneous finding that Nobelda and Leda Cabrera acted as leaders or organizers in the conspiracy, and (3) refused to reduce their offense levels for acceptance of responsibility. For the following reasons, we conclude that the district court's findings on these three issues are not clearly erroneous, and thus we AFFIRM Nobelda and Leda Cabrera's sentences.

I. FACTUAL AND PROCEDURAL BACKGROUND

Nobelda and Leda Cabrera ("Nobelda" and "Leda") were among six defendants charged in a single indictment with violating 18 U.S.C. § 371 by conspiring "to commit an offense against the United States, that is, encouraging and inducing aliens to come to, enter and reside in the United States" in violation of 8 U.S.C. § 1324(a)(1)(A)(iv). The indictment alleged that Nobelda and Leda were part of an operation that assisted individuals in illegally entering the United States from Mexico by paying parents to permit their children to accompany immigrants across the border. The children provided a measure of security for illegal immigrants attempting to enter the United States because the U.S. Border Patrol had a policy of returning families with young children to Mexico rather than detaining them and charging them with illegal entry.

Both Nobelda and Leda pled guilty, preserving their right to appeal their sentences. The factual basis proffered by the government in support of their pleas at their rearraignment was derived from an investigation conducted by the Immigration and Naturalization Service ("INS").¹ Regarding Nobelda, the government stated that two couples had told INS agents that the couples had been paid to give their young daughters to Nobelda and Juan Ramon Rodriguez (Nobelda's husband and co-defendant) so that undocumented immigrants could pose as the children's parents while crossing the United States-Mexico border. With respect to Leda, the government asserted that she "assisted in the conspiracy by ... going to Western Union in order to pick up money that had been wired as payments for the smuggling fee" and by taking "phone messages[] on behalf of Nobelda Cabrera regarding the smuggling activity." Both Nobelda and Leda admitted to this conduct before entering their guilty pleas.

At their sentencing hearing,² Nobelda and Leda presented arguments to the district court in support of their previously-filed written objections to the findings made by the probation officer in their presentence reports ("PSRs"). Nobelda and Leda agreed that their PSRs properly (1) assigned each of them a base offense level of 12 pursuant to subsections 2X1.1(a) and 2L1.1(a)(2) of the U.S. Sentencing Guidelines ("Sentencing Guidelines"),³ and (2) increased their offense levels by two because of the involvement of minors in the offense.⁴ However, they objected to the following three steps in the calculation of the total offense levels set out in their PSRs. First, Nobelda and Leda objected to the six-level increase based on the PSRs' finding that the offense involved the smuggling of between twenty-five and ninety-nine illegal immigrants into the United States. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.1(b)(2)(B) (2000) (providing that "[i]f the offense involved the smuggling, transporting, or harboring of [twenty-five to ninety-nine] unlawful aliens," then "add 6" to the base offense level). According to the PSRs, the INS investigation revealed that thirty illegal immigrants were smuggled into the United States in the course of the conspiracy. At the sentencing hearing, the government called upon INS Agent Elizar Paredes to explain the basis of this finding in the PSRs. Paredes testified that two couples and one woman admitted to "renting out their [children]" for use in the smuggling operation on a combined total of "approximately 15 occasions." Paredes explained that the INS "made the assumption that [the defendants] were bringing in couples" with each child, in which case the number of illegal immigrants smuggled would be thirty (i.e., two illegal immigrants on each of the fifteen occasions in which the parents permitted their children to be used in the smuggling operation). Paredes further stated that "the preponderance of the evidence" supported the assumption that two illegal immigrants had been smuggled on each occasion because "the whole purpose was to have the smuggled aliens pose as a family unit," and thus "[t]hey would need a father and mother." However, Paredes acknowledged that "on one occasion [we did] find that only one person used the child[,] [s]o that would be ... 29 persons [were smuggled]."

Nobelda and Leda argued that the fact that only one person had taken a child on one of the smuggling trips rendered the assumption that two persons were smuggled on the other trips too speculative to justify the six-level increase for an offense involving the smuggling of twenty-five or more illegal immigrants. According to Nobelda and Leda, at most, the evidence established that the offense involved the smuggling of between six and twenty-four illegal immigrants, justifying an offense-level increase of only three. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.1(b)(2)(A) (2000). Concluding that a preponderance of the evidence supported the PSRs' finding that the offense involved the smuggling of twenty-five or more illegal immigrants, the district court denied Nobelda and Leda's objection and adopted this finding.

After increasing Nobelda and Leda's offense level by six based on the number-of-immigrants finding, the probation officer arrived at the total offense level of 24 after applying a four-level increase based on his determination that Nobelda and Leda played "organizer or leader" roles in the offense. Id. § 3B1.1(a) ("If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase [the offense level] by 4 levels."). Finally, the probation officer found that Nobelda and Leda had not adequately accepted responsibility for the offense to warrant a decrease in their offense levels. See id. § 3E1.1(a). Nobelda and Leda objected to both of these findings, arguing (1) that there was insufficient evidence that they had exercised the sort of authority that would justify a leader/organizer finding, and (2) that they were entitled to three-level decreases in their offense levels because their guilty pleas, colloquies, and previous interactions with investigating officers demonstrated that they had sufficiently accepted responsibility for their roles in the offense. The district court denied both objections and adopted the PSRs' findings without qualification.

Factoring in their criminal history categories, the district court determined that Nobelda and Leda were each subject to a range of 57 to 60 months' imprisonment.⁵ The district court imposed a prison sentence of 60 months on both Nobelda and Leda, explaining that "[t]hey used multiple children, little babies, to do this, so certainly I believe that a sentence of both these women at the high end of the guideline range is appropriate." The court further sentenced Nobelda and Leda to three years' supervised release and ordered them to pay a special assessment of $100.

Nobelda and Leda timely appealed their sentences, reasserting the three challenges that they made in the district court.

II. STANDARD OF REVIEW

To succeed in an appeal of a sentence imposed pursuant to the Sentencing Guidelines, a defendant must demonstrate that the sentence was imposed in violation of the law, was a result of an incorrect application of the relevant guidelines, or is greater than the applicable guideline range and was unreasonable. 18 U.S.C. § 3742(a) (1994); see also United States v. Cho, 136 F.3d 982, 984 (5th Cir. 1998). This court reviews a district court's legal interpretation and application of the sentencing guidelines de novo and its factual findings for clear error. United States v. Lowder, 148 F.3d 548, 552 (5th Cir.1998). "[G]iv[ing] due regard to the opportunity of the district court to judge the credibility of the witnesses," 18 U.S.C. § 3742(e), we will deem the district court's factual findings clearly erroneous only if, based "on the entire evidence," we are "left with the definite and firm conviction that a mistake has been committed." United States v. Cooper, 274 F.3d 230, 238 (5th Cir.2001) (citation omitted).

III. THE INCREASE BASED ON THE FINDING OF THE NUMBER OF ILLEGAL IMMIGRANTS SMUGGLED

Section 2X1.1 is...