### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 41168 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. ENRIQUE GONZALEZ

- CAVAZOS , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:12

- CR

- 469

- 1

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges. PER CURIAM: * Enrique Gonzalez

- Cavazos was charged with conspiracy to transport aliens within the United States by means of a motor vehicle and three counts of transporting aliens within the United States by means of a motor vehicle. A jury found him guilty of the thre e transporting counts but acquitted him of the conspiracy count. The court sentenced him with in the advisory guidelines

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### F ILED February 12, 2014 Lyle W. Cayce Clerk Case: 12-41168 Document: 00512530435 Page: 1 Date Filed: 02/12/2014No. 12

- 41168

range to 48 months of imprisonment. He now appeals, arguing four points of

error. First, Gonzalez

- Cavazos argues that the district co urt erred when it ruled that the Government could introduce evidence of his 2009 aggravated assault conviction if he chose to testif y
. A fter this ruling, Gonzalez

- Cavazos preemptiv ely testified on direct examination about his prior conviction. “‘[A] defe ndant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was

error. ’ ” United States v. Delgado , 401 F.3d 290, 30 1 (5th Cir. 2005) (quoting Ohler v. United States , 52 9 U.S. 753, 760 (2000)). This issue is without merit. Second, Gonzalez

- Cavazos argues that the district court erred when it applied a six

- level increase based on its finding that he transported between 25 and 100 aliens. We review a district court’s fac tual findings at sentencing for clear error and its application of the Sentencing Guidelines de novo. United States v. Alcantar , 733 F.3d 143, 146 (5th Cir. 2013). There were ten aliens involved in the instant offense. At the sentencing hearing, Gonzale z - Cavazos’s codefendant, Julian Cisneros, Jr., testified t hat he had transported aliens with Gonzalez

- Cavazos about four or five times over the course of approximately two weeks and that there were eight to ten aliens in each group transported. Cisneros testified that they used three different drop

- off locations during this time . The district court took note of this and concluded that even if there had been only one group dropped off at each location, it would amount to 25 or more aliens. The district c ourt’s finding is plausible in light of the record as a whole and is thus not clearly erroneous. Third, Gonzalez

- Cavazos argues that the district court erred when it applied a six

- level enhancement under U.S.S.G. § 2L1.1(b)(6) and a two

- level enhancement u nder § 3C1.2 because the enhancements were based on the

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- 41168 same conduct. The commentary to § 2L1.1 provides, “ If subsection (b)(6) applies solely on the basis of conduct related to fleeing from a law enforcement officer, do not apply an adjustment from § 3C1 .2 (Reckless Endangerment During Flight). ” § 2L1.1 comment. (n.5). The district court explained that it applied the § 2L1.1(b)(6) enhancement because the aliens were put “in the bed of a pickup truck [and] locked in with the bed cover,” which the district court described as “analogous to transporting aliens in the tru n k of a car.” The district court explained that it applied the § 3C1.2 enhancement “because it was a high

- speed chase, it was reckless, there were other people on the roadway, and that regard less of the manner in which these aliens are being transported, the flight itself created a substantial risk of se rious bodily injury or death.” The enhancements were therefore not based on the same conduct and do not conflict with § 2L1.1’s application n otes or amount to double counting. Last, Gonzalez

- Cavazos argues that because the jury did not find beyond a reasonable doubt the he committed the offense for commercial advantage or financial gain, the district court should have reduced his offense leve l by three levels. Section 2L1.1(b)(1) provides for a three

- level decrease if the offense was committed “other than for profit” or for other reasons not applicable here. “[T] he burden of proof at sentencing is by a preponderance of the evidence.” United States v. Brooks , 681 F.3d 678, 712 (5th Cir. 2012), cert. denied , 133 S. Ct. 839 (2013). Cisneros testified at sentencing t hat he and Gonzalez

- Cavazos were paid to transport the aliens, and the aliens who testified at trial stated that they paid to be s muggled into the country. Based on this evidence, it is more likely than not that the off ense was committed for profit . The district did not clearly err in failing to reduce the offense level.

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- 41168 In light of the foregoing, t he judgment of the district court is AFFIRMED. Gonzalez

- Cavazos’s motion to expedite the appeal is DENIED.

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