IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41284

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE OLIVARES,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:

Jose Olivares pleaded guilty to one count of harboring aliens within the 

United States for private financial gain, in violation of 8 U.S.C. 

§ 1324(a)(1)(A)(iii), (v)(II), (B)(i). The presentence report (PSR) increased 

Olivares’s offense level to 20 after application of an enhancement under 

U.S.S.G. § 2L1.1(b)(5)(B), noting that three aliens had positively identified 

Olivares as the person who brandished a weapon in order to threaten them. 

The district court overruled Olivares’s objection to the enhancement and 

sentenced him within the advisory guidelines range to 66 months of 

imprisonment and a two-year term of supervised release.

United States Court of Appeals

Fifth Circuit

FILED

August 17, 2016

Lyle W. Cayce

Clerk
No. 15-41284

2

Olivares now contends that the district court erred by applying the 

§ 2L1.1(b)(5)(B) enhancement. We review for clear error his challenge to the 

sufficiency of the evidence supporting the district court’s factual findings. See

United States v. Reyna-Esparza, 777 F.3d 291, 293-94 (5th Cir. 2015). While 

the Government has the burden to prove, by a preponderance of the evidence, 

the facts which are necessary to support the enhancement, id. at 294, “[a]s a 

general rule, information in the pre-sentence report is presumed reliable and 

may be adopted by the district court without further inquiry if the defendant 

fails to demonstrate by competent rebuttal evidence that the information is 

materially untrue, inaccurate, or unreliable,” United States v. Carbajal, 290 

F.3d 277, 287 (5th Cir. 2002) (internal quotation marks and citation omitted). 

Olivares thus has the burden to present competent evidence showing that the 

facts in the PSR are materially untrue or inaccurate. United States v. 

Cervantes, 706 F.3d 603, 620–21 (5th Cir. 2013).

Olivares has not made the requisite showing. He first contends that the 

photographic lineup from which the aliens identified him was 

unconstitutionally suggestive because his photograph was the only one in 

which the subject had tattoos and facial hair. Because Olivares did not provide 

the photographic lineup in connection with his argument, there is no evidence 

in the record to support his allegation. “Mere objections do not suffice as 

competent rebuttal evidence.” United States v. Solis, 299 F.3d 420, 455 (5th 

Cir. 2002) (internal quotation marks and citation omitted).

Olivares also contends that the aliens incorrectly identified an innocent 

person (codefendant Priscilla Gutierrez) from a different photographic lineup 

and that the firearm the aliens claimed to have seen was never found. These 

statements do not comprise competent rebuttal evidence. The charges against 

Gutierrez were dismissed, but there is no indication in the record that the 
No. 15-41284

3

dismissal occurred because the aliens misidentified Gutierrez or because she 

was actually innocent; rather, the record indicates that the photographic 

lineup which included Gutierrez was created only after law enforcement had 

already found her to be connected to the stash house. The PSR also provided 

a reasonable explanation for why the firearm was never found: the stash house 

where the aliens were housed was never searched, because the aliens escaped 

and were found by law enforcement at a different location. We have upheld 

the application of the § 2L1.1(b)(5)(B) enhancement where a firearm was not 

recovered from the defendant at the time of arrest. See United States v. 

Cabrera, 600 F. App’x 279, 279-80 (5th Cir.), cert. denied, 136 S. Ct. 2412 

(2015).1

Olivares has not demonstrated by competent rebuttal evidence that the 

facts in the PSR supporting application of the § 2L1.1(b)(5)(B) enhancement 

were materially untrue or inaccurate. See Cervantes, 706 F.3d at 620-21. 

Accordingly, he has not shown that the district court clearly erred in applying 

the enhancement. See Reyna-Esparza, 777 F.3d at 293-94.

AFFIRMED.

 

1 Although unpublished opinions are not precedential, they are persuasive. See 

Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (recognizing that unpublished 

decisions issued after January 1, 1996, are not controlling precedent but may be considered 

persuasive authority).