United States v. Gomez-Valle

• Decision Date: 05 July 2016
• Docket Number: No. 15–41115,15–41115
• Citation: 828 F.3d 324
• Parties: United States of America, Plaintiff–Appellee, v. Jose Roberto Gomez–Valle, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

828 F.3d 324

United States of America, Plaintiff–Appellee

v.Jose Roberto Gomez–Valle, Defendant–Appellant.

No. 15–41115

United States Court of Appeals, Fifth Circuit.

FILED July 5, 2016

Amy Howell Alaniz, Renata Ann Gowie, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Oscar Rene Flores, Edinburg, TX, John Riley Friesell, Houston, TX, for Defendant–Appellant.

Before WIENER, PRADO, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

The opinion issued June 29, 2016 is withdrawn by the panel, and the following is issued in its place:

Jose Roberto Gomez–Valle appeals a 34–month sentence imposed after he pleaded guilty to harboring undocumented aliens for financial gain. Gomez–Valle contends that the district court erred in failing to grant a mitigating role adjustment to his offense level pursuant to § 3B1.2 of the United States Sentencing Guidelines. We affirm.

I

Gomez–Valle concealed undocumented aliens at a residence that the parties describe as a “stash house” in McAllen, Texas, while the aliens awaited transportation to other Texas cities. He contends that his role in the criminal enterprise was minimal or minor within the meaning of § 3B1.2 of the Sentencing Guidelines.¹

The presentence report (PSR) reflects that in October 2014, Customs and Border Protection (CBP) agents attempted to conduct a traffic stop of a vehicle that appeared to be heavily loaded. The driver took evasive actions and ultimately drove off the road and stopped in a grove of trees. The driver absconded, but CBP agents apprehended sixteen undocumented aliens not far from the abandoned vehicle. One of them, Edgardo Rocha, was later identified as “a transporter and brush guide,” who “conspired with other unindicted individuals to transport the 15 [other] undocumented aliens to Houston, Texas, in exchange [for] financial compensation.” Further investigation indicated that the aliens had departed in the vehicle from the McAllen stash house.

Immigration and Customs Enforcement (ICE) agents conducted “intermittent surveillance” of the stash house and in December 2014, observed a white truck arrive and then depart fifteen minutes later, “travelling in tandem with two scout vehicles.” Agents detained the truck after it stopped and a group of individuals exited. The driver, Guillermo Raga, was subsequently identified as a “transporter,” who conspired with other unindicted individuals to transport undocumented aliens to an area north of Edinburg, Texas. The agents found twenty aliens in the vicinity of the drop-off location. These individuals had been harbored at the stash house.

In March 2015, ICE agents were admitted to the stash house by the woman, Lucia Sandoval, with whom Gomez–Valle lived and found him in a back room of the house with undocumented aliens. Gomez–Valle was taken into custody. During questioning, he said that he had resided at the stash house with Sandoval since October 2014, during which time “he had harbored approximately 50 undocumented aliens,” approximately twenty in October 2014, twenty in December 2014, and an additional nine during the week prior to his arrest. On two occasions, Gomez–Valle retrieved aliens from business locations in McAllen and drove them to the stash house. Gomez–Valle said that he was paid $400 per week for housing undocumented aliens and was provided an additional $200 to purchase food for them. He reported that his total compensation was approximately $2,000. Gomez–Valle claimed that he undertook these actions at the behest of an individual named “Gordo.” An alien interviewed by agents, however, identified Gomez–Valle as “Gordo” from a photo lineup.

Gomez–Valle pleaded guilty to one count of harboring undocumented aliens within the United States for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(A)(v)(II), and (a)(1)(B)(i). A conspiracy count was not pursued. The PSR recommended that Gomez–Valle should not receive an offense level reduction pursuant to U.S.S.G. § 3B1.2 based on his role in the offense, noting that “[a]lthough Gomez–Valle's role cannot be described as aggravating, his actions do not merit a mitigating role adjustment.”

Gomez–Valle objected to the PSR, arguing that he was a “minimal participant” in the smuggling operation and was entitled either to a two- or four-level downward adjustment in his offense level pursuant to § 3B1.2.² Gomez–Valle averred that his was a minor role because he: (1) was merely being paid for “the use of his home”; (2) had no role in transporting the aliens to their ultimate destinations; (3) received only a fraction of the smuggling fee paid by each alien, none of which was collected by him; and (4) took direction from a man named “Gordo.” The Probation Office responded that a mitigating role adjustment was unwarranted because Gomez–Valle's “role was that of a caretaker and transporter of undocumented aliens” and that Gomez–Valle took “affirmative steps to commit th[e] offense when he allowed that the undocumented aliens be harbored at the stash house and when he picked up undocumented aliens from two different businesses.”

At the sentencing hearing, Gomez–Valle again objected to the PSR's recommendation that a § 3B1.2 reduction be denied. The district court overruled the objection and adopted the findings of the PSR. Applying a total offense level of 15 and a criminal history category of IV, the court calculated a guidelines range of 30 to 37 months of imprisonment and sentenced Gomez–Valle to 34 months of imprisonment. Gomez–Valle has appealed.

II

Gomez–Valle contends that the district court erred by refusing to grant a mitigating role adjustment pursuant to § 3B1.2. His arguments are primarily based on the Sentencing Commission's recent amendment to the commentary of § 3B1.2, which became effective on November 1, 2015, approximately three months after Gomez–Valle was sentenced but while this appeal was pending.³ (Gomez–Valle was sentenced on August 7, 2015.) Gomez–Valle argues that Amendment 794 was intended to clarify § 3B1.2, as opposed to effect substantive changes, and is therefore available for consideration in cases on direct appeal.⁴

A

The parties initially dispute the applicable standard of review. Gomez–Valle asserts that he preserved error by objecting to the denial of a mitigating role adjustment pursuant to § 3B1.2. The Government argues that our review is for plain error, noting that though “Gomez objected to the lack of a mitigating role reduction ... [,] Gomez did not reference Amendment 794.”

When an argument is preserved in the district court, “we review the application of the Guidelines de novo and the district court's factual findings—along with the reasonable inferences drawn from those facts—for clear error.”⁵ “Whether [a defendant] was a minor or minimal participant is a factual determination that we review for clear error.”⁶ “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.”⁷

But generally, when a defendant “objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only.”⁸ An argument is not preserved if the objection presented to the district court did not give “the district court the opportunity to address the gravamen of the argument presented on appeal.”⁹

In United States v. Sanchez, this court applied plain error review when neither the defendant nor the district court was aware of the pendency of a proposed amendment to the Guidelines.¹⁰ In that case, there was no guideline at the time of sentencing expressly applicable to the offense of failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA).¹¹ The proposed amendment created a new section applicable to this offense.¹² We found plain error and required resentencing. We explicitly stressed the “narrowness of our holding”:

We hold only that, where, at the time of sentencing there is no guideline in effect for the particular offense of conviction, and the Sentencing Commission has promulgated a proposed guideline applicable to the offense of conviction, the district court's failure to consider the proposed guideline when sentencing the defendant may result in reversible plain error.¹³

In the present case, the text of § 3B1.2 was in effect at the time of sentencing, and the text itself remained unchanged by Amendment 794, though proposed changes to the commentary had been published by the Sentencing Commission and transmitted to Congress on April 30, 2015, well before Gomez–Valle's August 2015 sentencing.¹⁴ However, it is unnecessary to resolve whether the plain error standard of review applies in the present circumstances because Gomez–Valle fails to demonstrate error even under the less stringent clear error standard.

B

Section 3B1.2 of the Sentencing Guidelines instructs sentencing courts to decrease a defendant's offense level by four levels “[i]f the defendant was a minimal participant in any criminal activity,” two levels “[i]f the defendant was a minor participant in any criminal activity,” and three levels if the defendant's level of participation fell between minimal and minor.¹⁵ The commentary to § 3B1.2 provides that a mitigating role adjustment is available to any defendant “who plays a part in committing the offense that makes him substantially less culpable than the average participant.”¹⁶

As noted above, Amendment 794 left the text of § 3B1.2 unchanged but made various revisions to the commentary.¹⁷ The Commission explained that the amendment was a result of a study that, overall, found that the mitigating role provision in the Guidelines “is applied inconsistently and more sparingly than the Commission intended.”¹⁸ Among other reasons expressed for promulgating the amendment, the Commission stated that it “addresses a circuit conflict and other case law that may be discouraging courts from applying the adjustment in otherwise appropriate circumstances.”...