### 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

- Bau tista (De La Cruz) pleaded guilty, without the benefit of a plea agreement, to conspiring to transport and harbor aliens and to being found unlawfully i n 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, claim ing that it is procedurally and substantively unreasonable.

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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

### FILED June 15, 2015 Lyle W. Cayce Clerk Case: 14-41035 Document: 00513077959 Page: 1 Date Filed: 06/15/2015No. 14

- 41035

2 De La Cru z 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

- l evel 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) a re unreliable and that there i s a discrepancy in the number of unaccompanied minors found in one of the stash house s 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 th e 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 fro m 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 w as sufficiently reliable. Cf. id. (explaining that findings in a PSR based on the results of a police investigation are suffi ciently reliable ). Moreover, De La Cruz acknowledges that he did not adduce evidence to rebut those findings

. T he 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, Case: 14-41035 Document: 00513077959 Page: 2 Date Filed: 06/15/2015No. 14

- 41035

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

. De La Cruz also dispute s the two

- level enhancement under U.S.S.G. § 2L1.1(b)(6) for inte ntionally 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 for ced to sleep standing
up , and that several of them fainted. In fact, the PSR states that De La Cruz housed as many as 2 50 aliens in one mobile home

. The district court agreed that De La Cruz kept the aliens in crowded and inhuman e conditions, noting that they were “packed in like sardines.” De La Cruz nevertheless insists that these findings a re 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 r eckless 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 , 54 1 F.3d 290, 293

- 94 (5th Cir. 2008); United S tates v. Garcia

- Guerrero , 313 F.3d 892, 896 (5th Cir. 2 002)

. Once the district court found that the conditions we re crowded and inhuman e , it was not required to discuss the potential harm that could have resulted from that inherently dangerous situ ation o r 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) h is lack of education, (2) that he committed the offense becaus e he was in love with one of his coconspirators, or (3) “all the other information Case: 14-41035 Document: 00513077959 Page: 3 Date Filed: 06/15/2015No. 14

- 41035

4 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, s ee United States v. Powell , 732 F.3d 361, 38 1 (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 show n that t he district court failed to consider a ny 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. S ee 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. T he judgment of th e district court is AFFIRMED. Case: 14-41035 Document: 00513077959 Page: 4 Date Filed: 06/15/2015