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

Appeals 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 sixlevel sentencing enhancement under Sentencing Guideline § 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 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 4, 2019

Lyle W. Cayce

Clerk

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No. 18-40899

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were relevant conduct to his offense, asserting they were too temporally remote 

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. Id. 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 relevantconduct determinations, only for clear error. E.g., United States v. CisnerosGutierrez, 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 presentence 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 factors 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, cmt. n.5(B)(ii); see Rhine, 583 F.3d at 886–87.

Angulo’s offense involved his delivering three undocumented aliens to a 

law-enforcement officer. Four of the prior smuggling events, involving a total 

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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 smuggling 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, because 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, see Williams, 610 F.3d at 292–94.

AFFIRMED.

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