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 three transporting counts but acquitted him of the 

conspiracy count. The court sentenced him within the advisory guidelines 

* Pursuant to 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 12, 2014

Lyle W. Cayce

Clerk

 

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No. 12-41168

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

error.

First, Gonzalez-Cavazos argues that the district court erred when it 

ruled that the Government could introduce evidence of his 2009 aggravated 

assault conviction if he chose to testify. After this ruling, Gonzalez-Cavazos 

preemptively testified on direct examination about his prior conviction. “‘[A]

defendant 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, 301 (5th Cir. 2005) (quoting 

Ohler v. United States, 529 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 factual 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, Gonzalez-Cavazos’s codefendant, Julian Cisneros, Jr., testified that

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 court’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 under § 3C1.2 because the enhancements were based on the 

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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 trunk 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 regardless of the 

manner in which these aliens are being transported, the flight itself created a 

substantial risk of serious bodily injury or death.” The enhancements were 

therefore not based on the same conduct and do not conflict with § 2L1.1’s 

application notes 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 level 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 that he and Gonzalez-Cavazos 

were paid to transport the aliens, and the aliens who testified at trial stated 

that they paid to be smuggled into the country. Based on this evidence, it is 

more likely than not that the offense was committed for profit. The district did 

not clearly err in failing to reduce the offense level.

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In light of the foregoing, the judgment of the district court is AFFIRMED. 

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

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