IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41035

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAFAEL DE LA CRUZ-BAUTISTA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:14-CR-267

Before SMITH, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Rafael De La Cruz-Bautista (De La Cruz) pleaded 

guilty, without the benefit of a plea agreement, to conspiring to transport and 

harbor aliens and to being found unlawfully in the United States after having 

been deported following a felony conviction. He challenges his 46-month prison 

sentence, which was at the bottom of the advisory guidelines range, claiming 

that it is procedurally and substantively unreasonable.

 

* 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

June 15, 2015

Lyle W. Cayce

Clerk

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De La Cruz contends that the district court erred by enhancing his 

offense level for harboring unaccompanied minors and for intentionally or 

recklessly creating a substantial risk of death or serious bodily injury. We

review the district court’s application of the Guidelines de novo and its factual 

findings for clear error. United States v. Cantu-Ramirez, 669 F.3d 619, 628 

(5th Cir. 2012).

De La Cruz first urges that the district court should not have assessed a 

two-level enhancement for harboring a person younger than 16 years old who 

is not accompanied by a parent or grandparent. He asserts that the findings 

in the presentence report (PSR) are unreliable and that there is a discrepancy 

in the number of unaccompanied minors found in one of the stash houses that 

he maintained. See U.S.S.G. § 2L1.1(b)(4) & comment. (n.1). 

A district court may adopt the facts contained in a PSR if they have an 

adequate evidentiary basis with sufficient indicia of reliability and if the 

defendant does not present evidence to rebut them or otherwise demonstrate 

that they are unreliable. United States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 

2014). The probation officer who prepared the instant PSR consulted the 

investigative reports from Department of Homeland Security and the Bureau 

of Customs and Border Protection, the case agent for the Department of 

Homeland Security, trial testimony, and depositions from material witnesses. 

The findings in the PSR were thus based on evidence that was sufficiently 

reliable. Cf. id. (explaining that findings in a PSR based on the results of a 

police investigation are sufficiently reliable). Moreover, De La Cruz 

acknowledges that he did not adduce evidence to rebut those findings. The 

PSR did contain a discrepancy as to whether De La Cruz housed two or three 

unaccompanied minors, but only one is required to trigger the enhancement, 

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see § 2L1.1(b)(4). The precise number of minors that De La Cruz harbored is 

immaterial. 

De La Cruz also disputes the two-level enhancement under U.S.S.G. 

§ 2L1.1(b)(6) for intentionally or recklessly creating a substantial risk of death 

or serious bodily injury. He does not dispute the PSR’s findings that these 

aliens were housed in cramped conditions and were forced to sleep standing 

up, and that several of them fainted. In fact, the PSR states that De La Cruz 

housed as many as 250 aliens in one mobile home.

The district court agreed that De La Cruz kept the aliens in crowded and 

inhumane conditions, noting that they were “packed in like sardines.” De La 

Cruz nevertheless insists that these findings are insufficient to support the 

enhancement, maintaining that the court was required to make additional 

findings that the conditions created a risk of death or serious bodily injury and

had to consider additional factors related to that risk. We disagree. The 

commentary to § 2L1.1(b)(6) instructs that “harboring persons in a crowded, 

dangerous, or inhumane condition” constitutes the type of reckless 

endangerment the Guideline is intended to address. § 2L1.1, comment. (n.5). 

The examples in the commentary describe situations that pose “inherent” risks 

of danger. See United States v. Mateo Garza, 541 F.3d 290, 293-94 (5th Cir.

2008); United States v. Garcia-Guerrero, 313 F.3d 892, 896 (5th Cir. 2002). 

Once the district court found that the conditions were crowded and inhumane, 

it was not required to discuss the potential harm that could have resulted from 

that inherently dangerous situation or other risks that the aliens faced. 

Finally, challenging his 46-month prison term as substantively 

unreasonable, De La Cruz contends that the district court did not sufficiently 

consider (1) his lack of education, (2) that he committed the offense because he 

was in love with one of his coconspirators, or (3) “all the other information 

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contained in the PSR.” De La Cruz did not object to the sentence in the district 

court, so our review is for plain error only, see United States v. Powell, 732 F.3d 

361, 381 (5th Cir. 2013). His position that the district court should have placed 

more emphasis on his personal history and characteristics amounts to a 

disagreement with the balance among the various sentencing factors that the 

district court struck: We will not reweigh those factors. See United States v. 

McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011). We also note that, at 

sentencing, De La Cruz’s counsel requested a 46-month sentence, precisely the 

sentence that he received. De La Cruz has not shown that the district court 

failed to consider any factor that should have received significant weight, or

that it gave significant weight to a factor that it should have discounted, or 

that it made a clear error of judgment when it balanced the relevant factors. 

See United States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013). He has 

therefore failed to rebut the presumption that his within-guidelines sentence 

is reasonable, much less shown that the district court committed plain error. 

See id.

The judgment of the district court is AFFIRMED.

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