United States Court of Appeals 

for the Fifth Circuit _____________ 

No. 23-40693 

consolidated with 

No. 23-40694 

_____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Orlando Andres Garcia, 

Defendant—Appellant. 

______________________________ 

Appeals from the United States District Court 

for the Southern District of Texas 

USDC Nos. 7:21-CR-2447-3, 

7:21-CR-2446-4 

______________________________ 

Before Barksdale, Stewart, and Ramirez, Circuit Judges. 

Per Curiam:*

Orlando Andres Garcia challenges his within-Guidelines 151-months’ 

sentence, imposed following his guilty-plea conviction for conspiracy to 

transport undocumented aliens within the United States, resulting in death, 

in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (transporting aliens), (v)(I) 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

September 19, 2024 

Lyle W. Cayce 

Clerk 

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c/w No. 23-40694 

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(conspiracy), (B)(iv) (resulting in death). He asserts the evidence is 

insufficient to support the four-level leadership-role enhancement under 

Sentencing Guideline § 3B1.1(a) (quoted infra). 

Although post-Booker, the Guidelines are advisory only, the district 

court must avoid significant procedural error, such as improperly calculating 

the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 

(2007). If no such procedural error exists, a properly preserved objection to 

an ultimate sentence is reviewed for substantive reasonableness under an 

abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 

F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in 

district court, its application of the Guidelines is reviewed de novo; its factual 

findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 

F.3d 751, 764 (5th Cir. 2008). 

The Guidelines provide for a four-level enhancement to defendant’s 

base offense level “[i]f the defendant was an organizer or leader of a criminal 

activity that involved five or more participants or was otherwise extensive”. 

U.S.S.G. § 3B1.1(a). Whether a defendant occupied a role as an organizer or 

leader is a factual finding, reviewed for clear error. United States v. OchoaGomez, 777 F.3d 278, 281 (5th Cir. 2015). “A factual finding that is plausible 

based on the record as a whole is not clearly erroneous.” Id. at 282. 

Consistent with the preponderance-of-the-evidence standard applied 

at sentencing in making findings of fact, United States v. Alaniz, 726 F.3d 586, 

618–19 (5th Cir. 2013), district courts may consider any evidence bearing a 

“sufficient indicia of reliability to support its probable accuracy”, and such 

evidence generally includes presentence investigation reports (PSR). United 

States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (citations omitted). 

Accordingly, “[t]he district court may adopt the facts contained in a [PSR] 

without further inquiry if those facts have an adequate evidentiary basis with 

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sufficient indicia of reliability and the defendant does not present rebuttal 

evidence or otherwise demonstrate that the information in the PSR is 

unreliable”. United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007). 

Garcia maintains he was merely a scout for the alien-smuggling 

operation, rather than an organizer or leader with decision-making authority. 

He contends the enhancement was neither supported by facts in the PSR nor 

by additional facts presented at his sentencing hearing. 

A codefendant’s statements included in the PSR, however, shows 

Garcia was the organizer or leader of an extensive alien-smuggling 

organization. Garcia, inter alia, hired one codefendant as an assistant brush 

guide, served as the point-of-contact in five prior alien-smuggling operations, 

and instructed the driver of the vehicle involved in the deadly crash 

underlying this case to speed up after an attempted traffic stop by a police 

officer; the officer followed the vehicle prior to its crash and the resulting 

deaths. See § 3B1.1 cmt. n.4 (outlining leadership-role enhancement factors). 

Further, the district court noted that individuals in leadership positions often 

take on scouting roles to minimize their own risk. 

To the extent Garcia challenges the reliability of his codefendant’s 

statements provided in the PSR regarding Garcia’s involvement, this 

contention is unavailing as he did not present rebuttal evidence or otherwise 

demonstrate the information in the PSR was unreliable. See Trujillo, 502 F.3d 

at 357. The district court did not clearly err in applying the four-level 

enhancement. 

AFFIRMED. 

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