### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 sente n ce 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 distri ct 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 28, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-20683 Document: 00511554147 Page: 1 Date Filed: 07/28/2011No. 10-20683

by him and his co-conspirators. Gom e z - 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 h arm suffered by the aliens did not constitute “serious bodily injury,” an d h i s argument is therefore reviewed f o r p l ain 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 s ub s t antial 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, inte gri ty or public reputation of judicial proceedings. Id. (citation omitted). The determination whether the h ar m exp eri e nc e d by the aliens rises to the level of “serious bodily injury” rather than “bodily inj u ry” i s a question of fact. See United States v. Davis , 19 F.3d 166, 171 (5th Cir. 1994) (not i n g 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 dis t ri c t c o u rt’s factual finding that defendant suffered s e ri o u s bodily injury). Because the district judge’s factual finding was p l a u s ib le in light of the record as a whole, GomezAguirre fails to establish error, much less plain e rr o r . 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 l i gh t o f 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