United States Court of Appeals

for the Fifth Circuit

No. 21-50407

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Abel Pena-Saenz, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:20-CR-508-1

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

Abel Pena-Saenz appeals his 21-month sentence for transporting 

illegal aliens for financial gain. He contends that the district court clearly 

erred by finding that he transported 12 aliens on his second trip as part of the 

basis for a guidelines enhancement. According to Pena-Saenz, the relevant

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 14, 2022

Lyle W. Cayce

Clerk

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No. 21-50407

2

information in the presentence report (PSR) lacked sufficient indicia of 

reliability because it was based on the affidavit of a Border Patrol agent who 

did not participate in detaining or interviewing Pena-Saenz and did not 

explain how he obtained the information. Pena-Saenz asserts that the report 

of the investigation and his own sworn statement did not indicate the number 

of aliens involved in the second trip. He also contends that he was not 

required to rebut the information with his own evidence because it lacked an 

adequate evidentiary basis with sufficient indicia of reliability. 

The evidence in the PSR that Pena-Saenz’s second trip involved 12 

aliens appeared in the sworn affidavit of a Border Patrol agent filed in support 

of the criminal complaint. Based on the record in this case, the district court 

did not clearly err in finding that the information had sufficient indicia of 

reliability to support its probable accuracy. See United States v. Peterson, 977 

F.3d 381, 396 (5th Cir. 2020); United States v. Fields, 932 F.3d 316, 320 (5th 

Cir. 2019). The court could consider hearsay evidence, see United States v. 

Andaverde-Tinoco, 741 F.3d 509, 525 (5th Cir. 2013), and reasonably infer that 

the information was obtained from the agents who personally interviewed 

Pena-Saenz, see United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). 

Because Pena-Saenz did not offer any evidence in rebuttal, the district 

court was entitled to rely on the evidence in the PSR based on the affidavit. 

See United States v. Lucio, 985 F.3d 482, 488 (5th Cir.), cert. denied, 142 S. Ct. 

177 (2021); Peterson, 977 F.3d at 396. Accordingly, its finding that the second 

trip involved 12 aliens was plausible in light of the record as a whole and was 

not clearly erroneous. See United States v. Williams, 610 F.3d 271, 292 (5th 

Cir. 2010). Our decision in United States v. Elwood, 999 F.2d 814 (5th Cir. 

1993), is distinguishable because the enhancement here is supported by

detailed factual information and not simply, as in Elwood, 999 F.2d at 817, the 

conclusory assertion of the probation officer, agents, and prosecutor that the 

enhancement should apply. 

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Accordingly, the judgment of the district court is AFFIRMED.

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