IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20683

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO GOMEZ-AGUIRRE, also known as El Cunado, also known as El

Viejo, also known as El Gordo,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CR-557-2

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Francisco Gomez-Aguirre appeals the 52-month sentence imposed

following his guilty-plea conviction of one count of conspiracy to harbor aliens for

private financial gain, and three counts of concealing aliens from detection for

private financial gain. He contends that the district court reversibly erred by

applying a four-level enhancement under U.S.S.G. § 2L1.1(b)(7)(B) on the basis

that the offense involved “serious bodily injury” to the aliens that were detained

United States Court of Appeals

Fifth Circuit

F I L E D

July 28, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-20683 Document: 00511554147 Page: 1 Date Filed: 07/28/2011
No. 10-20683

by him and his co-conspirators. Gomez-Aguirre acknowledges that the aliens

were threatened and beaten, but argues that the harm experienced by the aliens

constituted only “bodily injury,” which warrants only a two-level increase under

§ 2L1.1(b)(7)(A). 

In the district court, Gomez-Aguirre did not preserve an objection that the

harm suffered by the aliens did not constitute “serious bodily injury,” and his

argument is therefore reviewed for plain error. See United States v. Villegas,

404 F.3d 355, 358 (5th Cir. 2005). To establish plain error, Gomez-Aguirre must

show a forfeited error that is clear or obvious and that affects his substantial

rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes

such a showing, this court has the discretion to correct the error but only if it

seriously affects the fairness, integrity or public reputation of judicial

proceedings. Id. (citation omitted).

The determination whether the harm experienced by the aliens rises to the

level of “serious bodily injury” rather than “bodily injury” is a question of fact. 

See United States v. Davis, 19 F.3d 166, 171 (5th Cir. 1994) (noting that the

severity of a victim’s injury is a question of fact); see also United States v. GarzaRobles, 627 F.3d 161, 169-70 (5th Cir. 2010) (affirming district court’s factual

finding that defendant suffered serious bodily injury). Because the district

judge’s factual finding was plausible in light of the record as a whole, GomezAguirre fails to establish error, much less plain error. See United States v.

Wilcox, 631 F.3d 740, 753 (5th Cir. 2011)(Even where the objection is preserved,

“the court must determine whether the district court’s conclusion was plausible

in light of the record as a whole” in assessing the propriety of a sentencing

enhancement).

AFFIRMED.

2

Case: 10-20683 Document: 00511554147 Page: 2 Date Filed: 07/28/2011