# United States Court of Appeals **for the Fifth Circuit**

_____________ No. 23-40693
consolidated with No. 23-40694 Summary Calendar

_____________ 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 th e United States, resulting in death,

_____________________

* 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 Clerk23-40693 c/w No. 23-40694

2 in violation of 8 U.S.C. § 1324(a)(1)(A )(ii) (transporting aliens), (v)(I) (conspiracy), (B)(iv) (resulting in de ath). He asserts the evidence is insufficient to support the four-leve l 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 impr operly calculating the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 46, 51 (2007). If no such procedural error ex ists, 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 pa rticipants or was otherwise extensive”. U.S.S.G. § 3B1.1(a). Whether a defendan t 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 whol e 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 cour ts may consider any evidence bearing a “sufficient indicia of reliability to supp ort its probable accuracy”, and such evidence generally includes presente nce 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]23-40693 c/w No. 23-40694

3 without further inquiry if those facts ha ve an adequate evidentiary basis with sufficient indicia of reliability and th e 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 neithe r supported by fact s in the PSR nor by additional facts presented at his sentencing hearing.
A codefendant’s statements include d 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 vehi cle involved in the deadly crash underlying this case to speed up afte r an attempted traffi c 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 lead ership-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 rega rding 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 cl early err in applying the four-level enhancement.
AFFIRMED

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