IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41175

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

EDUARDO LUIS POMPA, also known as Lalo,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:15-CR-129-3

Before JONES, SMITH, and BARKSDALE, Circuit Judges. 

PER CURIAM:*

Eduardo Luis Pompa challenges his sentence of 63 months’ 

imprisonment, imposed following his jury-trial conviction for conspiracy to 

transport undocumented aliens into the United States, in violation of 8 U.S.C. 

§ 1324(a)(1)(A)(ii), (A)(iii), (A)(v)(I), & (B)(iii). Pompa presents two issues, the 

first being whether the district court committed clear error in failing to 

decrease his offense level pursuant to a minor-role adjustment, under 

 

* 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

March 21, 2018

Lyle W. Cayce

Clerk

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Sentencing Guideline § 3B1.2(b) because he was substantially less culpable 

than other members of the smuggling conspiracy. U.S.S.G. § 3B1.2, cmt. 3(A).

Although post-Booker, the Guidelines are advisory only, the district 

court must avoid significant procedural error, such as improperly calculating 

the 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 abuseof-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, 

only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 

764 (5th Cir. 2008).

Guideline § 3B1.2(b) provides for a two-level reduction of defendant’s 

offense level if the court finds defendant met his burden of showing, by a 

preponderance of the evidence, he was a minor participant, meaning he was 

“substantially less culpable than the average participant in the criminal 

activity”. U.S.S.G. § 3B1.2, cmt. 3A. Whether defendant was a minor 

participant is a factual finding, and, therefore, reviewed for clear error, as 

provided above. United States v. Sanchez-Villarreal, 857 F.3d 714, 721 (5th 

Cir. 2017). “A factual finding is not clearly erroneous if it is plausible in light 

of the record read as a whole.” Id. (internal quotation omitted).

Pompa contends the court erred in relying solely on the importance of 

his role as a “scout” and in not considering other factors listed in the 

commentary to Guideline § 3B1.2, in violation of this court’s opinion in

Sanchez-Villarreal. His reliance on Sanchez-Villarreal is misplaced because 

the district court in that case relied solely on the essential nature of 

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defendant’s role and apparently had no further evidence regarding culpability. 

Id. at 722. 

Here, the court presided over Pompa’s trial and adopted findings in the 

presentence investigation report (PSR) that reflected Pompa’s role and 

participation in the smuggling conspiracy and also the roles of his 

coconspirators. In the light of the court’s knowledge of facts establishing 

Pompa’s role and the role of the others involved in the criminal activity, it can 

be inferred the court considered Pompa’s culpability in relation to the other 

defendants. See United States v. Gomez-Valle, 828 F.3d 324, 330–31 (5th Cir. 

2016). The record shows finding Pompa was not substantially less culpable 

than the average participant was plausible, and, therefore, not clearly 

erroneous. Sanchez-Villarreal, 857 F.3d at 721. 

Next, Pompa claims the court erred in imposing a two-level enhancement 

for harboring an unaccompanied minor. U.S.S.G. § 2L1.1(b)(4). Pompa

concedes: he did not preserve this issue in district court; and, therefore, review 

is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th 

Cir. 2012). Under that standard, he must show a forfeited plain (clear or 

obvious) error that affected his substantial rights. Puckett v. United States,

556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the 

reversible plain error, but should do so only if it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings”. Id. For the following 

reasons, Pompa fails to demonstrate the court committed the requisite clear or 

obvious error in making the adjustment pursuant to Guideline § 2L1.1(b)(4). 

Id. 

As an initial matter, “questions of fact capable of resolution in the district 

court can never constitute plain error”. United States v. Illies, 805 F.3d 607, 

609 (5th Cir. 2015) (internal quotations omitted). In any event, the 

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enhancement is supported by the record. See United States v. Rodriguez, 525 

F. App’x 268, 269–70 (5th Cir. 2013). 

Law-enforcement agents identified 115 undocumented aliens in a stash 

house, ranging from 12 to over 50 years-of-age. The PSR placed Pompa on 

notice he was being held accountable for harboring minor children 

unaccompanied by adults, and he failed to present any evidence to dispute that 

finding. United States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014). Moreover, 

even assuming he was unaware of the children’s presence, the court could infer 

it was reasonably foreseeable to Pompa that an unaccompanied minor alien 

would be among those harbored during the extensive smuggling operation. 

U.S.S.G. § 1B1.3(a)(1)(B). 

AFFIRMED.

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