### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 40899 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. NICOLAS LOZANO ANGULO , Defendant

- Appellant

Appeal s from the United States District Court for the Southern District of Texas USDC No. 1:18

- CR

- 148

- 1

Before BARKSDALE, DENNIS, and SOUTHWICK , Circuit Judges

. PER CURIAM: * Nicolas Lozano Angulo appeals the sentence imposed following his guilty

- plea conviction for conspiracy to transport undocumented aliens within the United States. He claims the district court clearly erred by applying a six

level sentencing enhancement under Sentencing Guidelin e § 2L1.1(b)(2)(B) based on its finding the offense involved 25

- 99 aliens . Along that line, Angulo maintains the court erred: by determining prior instances of alien smuggling

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4

. United States Court of Appeals Fifth Circuit 

### FILED June 4, 2019 Lyle W. Cayce Clerk Case: 18-40899 Document: 00514982993 Page: 1 Date Filed: 06/04/2019No. 18

- 40899

2 were relevant conduct to his offense , asserting they were too temporally remot e from his offense ; and by relying on statements from witnesses who were not prosecuted. 

### Although post

- Booker , the Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the advisory Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 48

– 51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse

- of

- discretion standard. I d. at 51; United States v. Delgado

- Martinez , 564 F.3d 750, 751

– 53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo ; its factual findings, including relevant

conduct determinati ons, only for clear error. E.g. , United States v. Cisneros

Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008) ; United States v. Williams , 610 F.3d 271, 292 (5th Cir. 2010). Because Angulo provided no evidence to rebut the information provided by his presentenc e investigation report, the district court was free to adopt it and rely on it at sentencing. See United States v. Alaniz , 726 F.3d 586, 619 (5th Cir. 2013). Prior offenses may constitute the same course of conduct, and therefore qualify as relevant conduct to the offense of conviction, if they are sufficiently connected to each other based on the similarity, regularity, and temporal proximity of the offenses. United States v. Rhine , 583 F.3d 878, 886 (5th Cir. 2009). When one of the facto rs for determining same course of conduct “ is absent, a stronger presence of at least one of the other factors is required”

. U.S.S.G. § 1B1.3, c m t. n.5(B)(ii); see Rhine , 583 F.3d at 88 6

– 8 7. Angulo’s offense involved hi s delivering three undocumented al iens to a law

- enforcement officer. F our of the prior smuggling events, involving a total Case: 18-40899 Document: 00514982993 Page: 2 Date Filed: 06/04/2019No. 18

- 40899

3 of 17 aliens, occurred well within the one

- year benchmark this court uses for determining temporal proximity

. See Rhine , 583 F.3d at 886

– 87. While the other smuggli ng events occurred outside the one

- year benchmark , Angulo has waived any argument concerning the similarity and regularity of these events by failing to raise and brief them. See United States v. Scroggins , 599 F.3d 433, 446

– 47 (5th Cir. 2010). And, b eca use lack of temporal proximity is “ not dispositive ” , Rhine , 583 F.3d at 887, Angulo fails to show the court clearly erred in determining these prior smuggling events constituted relevant conduct to his offense of conviction , s ee Williams , 610 F.3d at 292

– 94

. AFFIRMED. Case: 18-40899 Document: 00514982993 Page: 3 Date Filed: 06/04/2019