United States v. Villanueva

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 27, 2005

Charles R. Fulbruge III
Clerk
No. 03-20812

UNITED STATES

Plaintiff-Appellee

versus

CESAR AUGUSTO VILLANUEVA; DIMAS ALEXANDER CORTEZ-LUMAS; JOSE
ENCARNACION REYES

Defendants-Appellants

--------------------
Appeal from the United States District Court
for the Southern District of Texas, Houston
4:02-CR-278-3
--------------------

Before HIGGINBOTHAM, SMITH and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

We are presented with a case of conspiracy to smuggle

undocumented aliens for commercial gain and attempts to aid and

abet the smuggling of undocumented aliens to the United States

for commercial gain. This appeal requires us to determine for

the first time in this circuit whether 8 U.S.C. §

1324(a)(2)(B)(ii) can support a conviction for conduct occurring

outside the United States. We hold that it can and rejecting

other arguments raised by appellants we Affirm.

I.

1
 Defendants-Appellants Cesar Augusto Villanueva

(“Villanueva”), Dimas Alexander Cortez-Lumas (“Cortez-Lumas”),

and Jose Encarnacion Reyes (“Reyes”) were found guilty, after a

jury trial, of conspiracy to bring undocumented aliens to the

United States in violation of 18 U.S.C. § 371 and 8 U.S.C. §

1324(a)(2)(B)(ii) (“count one”), and of two counts of aiding and

abetting an attempt to bring two individual undocumented aliens

to the United States in violation of 18 U.S.C. § 2 and 8 U.S.C. §

1324(a)(2)(B)(ii). Two co-conspirators, Jose Jairo Enriquez-

Amaya (“Enriquez-Amaya”) and Wilfredo Gonzalez-Rodriguez

(“Gonzalez-Rodriguez”), pled guilty to count one.

Defendants-appellants appeal their convictions and their

sentences. For the reasons set forth below, we affirm the

judgment of the district court in all respects.

II.

At trial, the government presented the testimony of five

primary witnesses: Ana Hernandez-Alvarado (“Hernandez-Alvarado”)

and Doris Elizabeth Cedillo (“Cedillo”), who were two of the

approximately 140 immigrants attempting to enter the United

States; Lieutenant Romeo Margarin (“Margarin”), who is a police

officer in El Salvador and who searched Reyes’ house in El

Salvador; Enriquez-Amaya, who pled guilty as a co-conspirator;

and Carlos Archuleta (“Archuleta”), a senior special agent with

the U.S. Department of Homeland Security.

Hernandez-Alvarado and Cedillo described the circumstances

2
surrounding their attempt to immigrate to the U.S. from El

Salvador. The process began when they each paid $1,500 to Reyes’

wife, Judith Bonilla, as a smuggler’s fee. Reyes then led

Hernandez-Alvarado and a group of about 20 immigrants to the El

Salvador-Guatemala border. Villanueva and Cortez-Lumas were

guides who met the group at the El Salvador-Guatemala border and

the Guatemala-Mexico border, respectively. As the group moved

through Guatemala and Mexico, Hernandez-Alvarado witnessed

Villanueva, Cortez-Lumas, and two other guides giving orders to

groups of immigrants, obtaining and distributing food to the

immigrants, and otherwise leading the then-150-person party.

In Mexico, the guides loaded the immigrants into a large

“Thermal King” trailer pulled by a tractor. Villanueva, Cortez-

Lumas, Enriquez-Amaya, and Wilfredo Gonzalez-Rodriguez also

traveled inside of the trailer. The trailer lacked adequate

ventilation, and at one point Enriquez-Amaya and Gonzalez-

Rodriguez used an ax to cut a hole in the top of the trailer.

Mexican police stopped the tractor-trailer on the outskirts of

Monterrey on January 25, 2002 and placed everyone under arrest.

The northbound journey of the would be illegal immigrants was

thus concluded before they reached the United States border.

Lieutenant Margarin, of the National Police Force of El

Salvador, found a receipt for approximately $15,000 that Reyes

had written out to a well-known immigrant trafficker in El

Salvador. He also found several notebooks containing names and

3
figures. Special Agent Archuleta testified that one of these

notebooks had a “pollo”1 list with several hundred names of

aliens who had been smuggled or were to be smuggled. On a page

dated January 15, 2002, Archuleta found entries for Hernandez-

Alvarado and Cedillo. Archuleta was unable to locate the name

Cesar Augusto Villanueva, Dimas Alexander Cortez-Lumas, or Jose

Encarnacion Reyes listed anywhere in the notebooks.

Enriquez-Amaya identified Jose Narcisso Ramirez-Ventura as

the overall leader of the smuggling organization and Cortez-Lumas

as the person in charge of coordinating this particular trip.

Enriquez-Amaya identified Villanueva as his immediate superior on

the trip, and he testified that Villanueva led a group of 20-25

immigrants. Additionally, Enriquez-Amaya testified that

Villanueva and another guide told him that they worked for Reyes.

Soon after intercepting the tractor trailer, Mexican

authorities released and repatriated 144 of the aliens. Although

U.S. funds paid for the repatriations, Archuleta was not involved

in the decision and he was not aware of it until after it

occurred. Mexican authorities tried and convicted the driver and

co-driver of the trailer, and held Villanueva, Cortez-Lumas,

Enriquez-Amaya, and Gonzalez-Rodriguez, who had been identified

by many of the aliens as guides.

However, a court in Mexico later ordered the release of the

1
“Pollo” is a Spanish word for a chicken and is commonly
used by alien smugglers to describe their human cargo.

4
four men charged as guides. It was at this point that Archuleta

initiated a prosecution of the four men by U.S. authorities.

III.

We first consider defendants-appellants’ challenges to their

convictions.

A.

Appellants first argue that the district court erred by

finding that Congress intended 8 U.S.C. § 1324(a) to apply to

extraterritorial conduct.2

“It is a longstanding principle of American law ‘that

legislation of Congress, unless a contrary intent appears, is

meant to apply only within the territorial jurisdiction of the

United States.’” Smith v. United States, 507 U.S. 197, 204 (1993)

(quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)).

Several recent Supreme Court decisions reinforce this

presumption. See, e.g., Sale v. Haitian Ctrs. Council, Inc., 509

U.S. 155, 176 (1993) (there must be affirmative evidence that

Congress intended extraterritorial application); F. Hoffman-La

Roche Ltd. v. Empagran S.A., 542 U.S. 155, 124 S.Ct. 2359, 2366

(2004) (the Supreme Court “ordinarily construes ambiguous

statutes to avoid unreasonable interference with the sovereign

2
Appellants were convicted of conspiracy, in violation of
18 U.S.C. § 371. However, it is the underlying substantive crime
of attempting to bring aliens to the United States for the
purpose of commercial advantage or private financial gain that is
relevant in determining subject matter jurisdiction. See, e.g.,
United States v. Baker, 609 F.2d 134, 139 (5th Cir. 1980).

5
authority of other nations”). Thus, the crux of this issue is

whether Congress intended 8 U.S.C. § 1324(a)(2)(B)(ii) to apply

to extraterritorial conduct.

Such intent can be inferred when limiting the locus of a

statute to U.S. territory would greatly curtail the scope and

usefulness of the statute and leave open a large immunity for

frauds that are as easily committed by citizens

extraterritorially as at home. United States v. Bowman, 260 U.S.

94, 98 (1922).

1. The language of the statute, the legislative history, and
the nature of the law indicate that Congress intended § 1324(a)
to apply to extraterritorial conduct.

The language of the statute itself indicates that Congress

intended it to apply to extraterritorial conduct.3 First, the

statute uses the phrase “brings to . . . the United States,”

rather than “brings into . . . the United States.” In 1986,

Congress enacted the Immigration Reform and Control Act, which

completely overhauled § 1324(a), including a change from the

3
8 U.S.C. § 1324(a)(2)(B)(ii) provides:

(2) Any person who, knowing or in reckless disregard
of the fact that an alien has not received prior official
authorization to come to, enter, or reside in the United
States, brings to or attempts to bring to the United
States in any manner whatsoever, such alien, regardless
of any official action which may later be taken with
respect to such alien shall, for each alien in respect to
whom a violation of this paragraph occurs – . . . (B) in
the case of – . . . (ii) an offense done for the purpose
of commercial advantage or private financial gain . . .
be fined under Title 18, and shall be imprisoned . . . .

6
phrase “brings into” to the phrase “brings to.”4 The legislative

history indicates that Congress made the change in response to

the decision in United States v. Anaya, 509 F. Supp. 289, (S.D.

Fla. 1980)(en banc) (aff’d on other grounds, sub nom. United

States v. Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982)); H.R.

Rep. No. 682(I), 99th Cong., 2d Sess. 65-66 (1986), reprinted in

1986 U.S.C.C.A.N. 5649, 5669-70. In Anaya, the court held that

“brings into” is synonymous with “entering,” so that a

transporter of illegal immigrants could not be guilty if the

immigrants he transported were not allowed entry into the United

States. 509 F.Supp. at 297. In response, Congress expanded the

scope of § 1324(a) by, inter alia, changing the phrase “brings

into” to “brings to” in order to “deter potential transporters

from inundating U.S. ports of entry with undocumented aliens.”

H.R. Rep. No. 682(I) at 66. Such an alteration strongly suggests

that Congress intended extraterritorial application because it

shows that Congress was concerned about activity taking place

outside of the United States.

Second, the statute criminalizes attempts. While some

4
The pre-1986 version of 8 U.S.C. § 1324(a) provided:

Any person, including the owner, operator, pilot, master,
commanding officer, agent, or consignee of any means of
transportation who (1) brings into or lands in the United
States, by any means of transportation or otherwise, or
attempts, by himself or through another, to bring into or
land in the United States, by any means of transportation
or otherwise . . . any alien . . . shall be guilty of a
felony . . . .

7
failed attempts will include activity within the United States,

many, if not most, will take place extraterritorially. This is

especially true because of the 1986 amendment to § 1324(a), which

expanded the scope of § 1324(a) to include attempts to “bring to”

to the United States. A failed attempt to “enter” the United

States could include an attempt that was foiled after the

immigrant had entered U.S. territory.5 However, a failed attempt

to “bring to” the United States, at least when by land, will

ordinarily be stopped outside of U.S. territory.

Third, the context of immigration statutes make it natural

to expect that Congress intends for them to reach

extraterritorial conduct. See United States v. Baker, 609 F.2d

134, 136 (5th Cir. 1980)(Congressional intent for a statute to

apply extraterritorially “may be inferred from the nature of the

offenses and Congress’ other legislative efforts to eliminate the

type of crime involved” when there is no express intention on the

face of the statute.). Immigration statutes, by their very

nature, pertain to activity at or near international borders. It

is natural to expect that Congress intends for laws that regulate

5
As the Ninth Circuit explained in United States v.
Gonzalez-Torres, federal courts have recognized since 1908 that
“entering” the United States requires more than mere physical
presence within the country. 309 F.3d 594, 598 (9th Cir. 2002).
“To ‘enter,’ an alien must cross the United States border free
from official restraint.” Id. “Official restraint” may take the
form of surveillance that is unbeknownst to the alien, because
although the alien has crossed the border, he does not have the
freedom to go at large and mix with the population. Id.
(internal citations omitted).

8
conduct that occurs near international borders to apply to some

activity that takes place on the foreign side of those borders.

2. Decisions of this Court analyzing drug smuggling laws
support a finding that Congress intended 8 U.S.C. §
1324(a)(2)(B)(ii) to apply to extraterritorial conduct.

In the context of drug smuggling laws, this Court has found

the necessary congressional intent to overcome the presumption

against extraterritorial application in laws that are similar to

§ 1324(a). In United States v. Baker, the defendants were

arrested on an American flag vessel in international waters, but

within the twelve-mile “customs waters” area, for possession of

51,280 pounds of marijuana. 609 F.2d 134, 135 (5th Cir. 1980).

We held that “so long as it is clear that the intended

distribution would occur within the United States . . .

jurisdiction may be maintained, where defendants are apprehended

outside the territorial waters, and inside the contiguous zone.”

Id. at 139.

In a similar case decided just three weeks later, we again

found that an anti-drug smuggling law had extraterritorial

application. United States v. Perez-Herrera, 610 F.2d 289 (5th

Cir. 1980). In Perez-Herrera, the defendants, who were all

American citizens, were arrested aboard an American-registered

ship in international waters approximately seventy miles from the

United States. Id. We determined that “Congress intended that

the prohibition of attempts to import drugs should apply to

attempts made wholly outside of our borders.” Id. at 291. We

9
based this conclusion on legislative history and “practical

considerations related to the operation of the statute.” Id.

Specifically, we were concerned about setting up a “free-zone”

where smugglers could safely await opportunities to move

contraband into U.S. territory. Id. at 292.

In Perez-Herrera, we also determined that the attempt to

smuggle marijuana into the U.S. had “real and significant

effects” within this country, even without any criminal activity

in the U.S., because each smuggling attempt further burdens U.S.

enforcement agencies. Id.

The instant case is analogous to Baker and Perez-Herrera in

several important respects: the intended destination was the

United States; a finding against extraterritorial application

could create a “free zone” just beyond the border; and attempts

that take place wholly outside of U.S. territory burden U.S.

enforcement agencies.

Therefore, for the foregoing reasons, we find that § 1324(a)

applies to extraterritorial conduct.6

B.

Defendants-appellants next contend that the government

denied their Sixth Amendment right to compulsory process, and

their Fifth Amendment due process rights, by repatriating

6
This conclusion comports with the conclusion reached by
our sister circuit in United States v. Delgado-Garcia, 374 F.3d
1337, 1343-44 (D.C. Cir. 2004)(rehearing en banc denied)(holding
that § 1324(a) applied to extraterritorial conduct).

10
approximately 140 witnesses to their native countries before

defense counsel could interview them.

1. Standard of Review

We review constitutional claims de novo. United States v.

Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). In order to show

that the deprivation of witness testimony amounted to a violation

of a defendant’s Sixth Amendment right to compulsory process “he

must make some plausible showing of how their testimony would

have been both material and favorable to his defense.” United

States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (citing

Washington v. Texas, 388 U.S. 14, 16 (1967)). With respect to a

Fifth Amendment due process claim, a defendant must at least

demonstrate that the testimony would have been material to his

defense. Id. at 872.

Due process guarantees that a criminal defendant will be
treated with “that fundamental fairness essential to the
very concept of justice. In order to declare a denial of
it we must find that the absence of that fairness fatally
infected the trial; the acts complained of must be of
such quality as necessarily prevents a fair trial.”

Id. (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)).

Such a denial of fairness on the basis of the deportation of

witnesses cannot be shown without “some explanation of how their

testimony would have been favorable and material.” Id. (citing

United States v. Lovasco, 431 U.S. 783 (1977); United States v.

Marion, 404 U.S. 307 (1971)). In addition, due process has been

violated “only if there is a reasonable likelihood that the

11
testimony could have affected the trier of fact,” considering the

entire record. Id. at 873-74 and 874 n.10.

2. The government did not deny the defendants’ Fifth or
Sixth Amendment rights to due process by repatriating the
witnesses in this case.

To support their argument, defendants-appellants cite

witness statements taken by Mexican authorities from the

approximately 140 witnesses who were repatriated. Several of the

witnesses either identify individuals other than the defendants

as collectors of the smuggling fee or as guides, or the witnesses

fail to identify one of the defendants as a guide.

This evidence is not sufficient to satisfy the defendants-

appellants’ burden. The government presented the eyewitness

testimony of a co-conspirator and two immigrants, each of whom

identified the defendants as guides. The statements from other

witnesses cited by defendants-appellants do not negate the

testimony of the government’s eyewitnesses. The statements, even

if accepted by the jury as true, can only prove that other

individuals, in addition to these defendants, acted as guides.

Accordingly, we find that the defendants-appellants failed

to make a plausible showing that the repatriated witnesses would

have provided testimony that was both material and favorable and

reasonably likely to influence the jury. Therefore, the

defendants-appellants have not demonstrated that the repatriation

of the witnesses violated either their Fifth or Sixth Amendment

rights.

12
 C.

Defendants-appellants next contend that the government

violated the Double Jeopardy Clause of the Fifth Amendment by

prosecuting them in the United States after charges had been

dismissed in a Mexican court. Whether a second prosecution

violates the Double Jeopardy Clause is a question of law that we

review de novo. United States v. Smith, 354 F.3d 390, 398 (5th

Cir. 2003).

The Double Jeopardy Clause only bars successive prosecutions

by the same sovereign. Heath v. Alabama, 474 U.S. 82, 88

(1985). In order to overcome the dual sovereignty doctrine,

appellants have to establish that the prosecution in Mexico was a

sham prosecution.7 Bartkus v. Illinois, 359 U.S. 121, 122-24

(1959). Although United States officials assisted the Mexican

government, defendants-appellants presented no evidence that the

United States had any ability to control the prosecution, so they

have failed to prove that the Mexican prosecution was a sham.

Accordingly, we find that this prosecution did not violate

the Double Jeopardy Clause.

D.

Villanueva contends that the evidence presented at trial was

7
We have previously questioned whether the sham
prosecution doctrine even exists. See United States v. Angleton,
314 F.3d 767, 773-74 (5th Cir. 2002). Because we find that there
is no evidence of a sham prosecution in the instant case, we do
not need to reach the question of the existence of the doctrine.

13
insufficient to convict him of aiding and abetting the attempt to

bring to the United States Satia Elizabeth Miranda-Alvarado and

Doris Elizabeth Diaz-Cedillo, in violation of 8 U.S.C. §

1324(a)(2)(B)(ii) and 18 U.S.C. § 2. Specifically, Villanueva

contends that his acts did not unequivocally demonstrate an

intention to help these two women enter the United States.

Instead, he argues that he intended to drop the women off at safe

houses on the Mexican side of the border, and the women would

later enter the United States on their own.

Our standard of review for assessing a challenge to the

sufficiency of the evidence is whether, considering all the

evidence in the light most favorable to the verdict, a rational

trier of fact could have found that the evidence established the

elements of the offense beyond a reasonable doubt.8 United

States v. Peters, 283 F.3d 300, 307 (5th Cir. 2002).

To aid and abet under § 2, a defendant must associate with

the criminal venture, participate in it and seek by his actions

to make the venture succeed. Id. at 308.

The government proved each of the elements of the offense by

8
The parties agree that 8 U.S.C. § 1324(a)(2)(B)(ii) has
five elements: the government must prove that each defendant (1)
brought or attempted to bring an alien into the United States;
(2) knew the person was an alien; (3) either knew or acted in
reckless disregard of the fact that the alien had not received
prior official authorization to come to, enter, or reside in the
United States; (4) intended to commit a criminal act by bringing
or attempting to bring an alien to the United States; and (5)
committed the offense for commercial advantage or private
financial gain.

14
presenting the eyewitness testimony of Cedillo, Hernandez-

Alvarado, and Enriquez-Amaya. All three witnesses identified

Villanueva as a guide who helped Cedillo and Hernandez-Alvarado

in their effort to enter the United States illegally.

Additionally, Special Agent Archuleta testified that Villanueva’s

name was absent from the “pollo” list that he found in Reyes’

home in El Salvador. At the very least, the evidence

demonstrated that Villanueva associated with the criminal

venture, that he participated in it by acting as a guide, and

that he sought to make the venture succeed by aiding immigrants

as they traveled from El Salvador to Mexico on the way to the

United States. Villanueva knew that the ultimate goal was to

illegally enter the United States, and he actively aided that

goal.

Viewing this evidence in the light most favorable to the

verdict, we find that the evidence was sufficient to convict

Villanueva of aiding and abetting the attempt to bring Cedillo

and Alvarado to the United States in violation of 8 U.S.C. §

1324(a)(2)(B)(ii).

For the reasons set forth above, we affirm the convictions

of Villanueva, Cortez-Lumas, and Reyes.

IV.

Appellants also challenge various aspects of their

sentences. In light of the Supreme Court’s decisions in Blakely

and Booker, we have reconsidered the process by which we review a

15
judge’s sentencing decisions. United States v. Mares, ___ F.3d

___, ___, 2005 WL 503715 (5th Cir.); Blakely v. Washington, 124

S. Ct. 2531, 159 L. Ed. 2d 403, 2004 U.S. LEXIS 4573 (2004);

United States v. Booker, 125 S. Ct. 738, 160 L. Ed. 621, 2005

U.S. LEXIS 628 (2005).

After Booker, when a district court has imposed a sentence

under the United States Sentencing Guidelines (the “Guidelines”),

we continue to review its interpretation and application of the

Guidelines de novo. United States v. Villegas, ___ F.3d ___,

___, 2005 WL 627963 at *3-4 (5th Cir.).

A.

Villanueva contends, for the first time on appeal, that the

Guidelines are unconstitutional. For an appellant, such as

Villanueva, who raised the issue of the constitutionality of the

mandatory Guidelines for the first time on appeal, we review his

claim for plain error. Mares, 2005 WL 503715 at *7.

This Court finds plain error when: (1) there was an error;

(2) the error was clear and obvious; and (3) the error affected

the defendant’s substantial rights. United States v. Olano, 507

U.S. 725, 732-37 (1993); Mares, 2005 WL 503715 at *8. “If all

three conditions are met an appellate court may then exercise its

discretion to notice a forfeited error but only if (4) the error

seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Mares, 2005 WL 503715, at *8 (quoting

16
United States v. Cotton, 535 U.S. 625, 631 (2002)).

The first prong of the plain error test is satisfied in this

case because Villanueva’s sentence was enhanced, under a

mandatory Guidelines system, based on findings made by the judge

that went beyond the facts admitted by Villanueva or found by the

jury. See Mares, 2005 WL 503715, at *8. The second prong is

also satisfied because, after Booker, such error is “plain.” Id.

Villanueva cannot, however, satisfy the third prong of the

plain error test. As we stated in Mares, “the pertinent question

is whether [Villanueva] demonstrated that the sentencing judge –

sentencing under an advisory scheme rather than a mandatory one –

would have reached a significantly different result.” Id. at *9.

As in Mares, there is no indication in the record in the instant

case that gives us any clue as to whether the sentencing judge

would have reached a significantly different result. As such,

Villanueva cannot carry his burden of proof of demonstrating that

the result would have likely been different had the judge been

sentencing under the Booker advisory regime rather than the pre-

Booker mandatory regime. Accordingly, we find no plain error.

B.

Villanueva contends that the district court erred in

adjusting his sentence, pursuant to U.S.S.G. § 2L1.1(b)(5), for

intentionally or recklessly creating a substantial risk of bodily

injury to the aliens he transported inside of a Thermal King

17
trailer. U.S.S.G. § 2L1.1(b)(5) provides for a two-level

increase “[i]f the offense involved intentionally or recklessly

creating a substantial risk of death or serious bodily injury to

another person.” Application note six to § 2L1.1 provides

several examples of the type of conduct to which (b)(5) applies:

“transporting persons in the trunk or engine compartment of a

motor vehicle, carrying substantially more passengers than the

rated capacity of a motor vehicle or vessel, or harboring persons

in a crowded, dangerous, or inhumane condition.” U.S.S.G. §

2L1.1 cmt. n. 6.

Villanueva acted as a guide in a conspiracy that involved

transporting approximately 140 people in a cramped trailer at

highway speeds and with inadequate ventilation. This is

precisely the type of transportation that the application note

gives as an example. The vehicle had substantially more

passengers than its rated capacity, and the trailer was crowded

and dangerous because of a lack of ventilation and because of the

risk of an accident.

Therefore, we affirm the district court’s application of the

two-level adjustment pursuant to § 2L1.1(b)(5).

C.

Villanueva contends that the district court should have

granted a reduction to his sentence pursuant to U.S.S.G. § 3B1.2

for being a minor or minimal participant. Whether he was a minor

or minimal participant is a factual determination that we review

18
for clear error.9 United States v. Mejia-Orosco, 867 F.2d 216,

221 (5th Cir. 1989). A factual finding is not clearly erroneous

if it is plausible in light of the record read as a whole.

United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995).

The district court held that Villanueva was an average

participant despite his minor role in the smuggling network as a

whole because he was only held accountable for the criminal

activity in which he was personally involved. The reduction for

being a minor or minimal participant remains available for a

defendant, like Villanueva, who was only held accountable for the

conduct in which he was personally involved. U.S.S.G. § 3B1.2,

cmt. n. 3(A). However, § 3B1.2 only applies when a defendant is

“substantially less culpable than the average participant.” Id.

It is not enough that a defendant “does less than other

participants; in order to qualify as a minor participant, a

defendant must have been peripheral to the advancement of the

illicit activity.” United States v. Miranda, 248 F.3d 434, 446-

47 (5th Cir. 2001).

In the instant case, Villanueva acted as a guide in multiple

9
Post-Booker, we continue to apply the same standard of
review to claims of erroneous fact-finding with respect to the
application of adjustments, i.e., we review for clear error. See
United States v. Holmes, --- F.3d ---,--- 2005 WL 768942, *16
(5th Cir. Apr. 6 2005). Cf. United States v. Doe, 398 F.3d 1254,
1257 & n.5 (10th Cir. 2005) (“When reviewing a district court’s
application of the sentencing Guidelines, we review any factual
findings for clear error. . . .”); United States v. Hazelwood,
398 F.3d 792, 795, 800-01 (6th Cir. 2005).

19
countries, over an extended period of time, as the group of

immigrants made its way from El Salvador to Mexico. His

contribution to the illicit activity was more than peripheral.

Thus, the district court’s finding that Villanueva was not a

minor participant was plausible in light of the record as a whole

and we affirm that finding.

D.

Reyes contends that the district court erred in finding that

he was a leader and enhancing his sentence pursuant to U.S.S.G. §

3B1.1. The district court’s determination that a defendant was a

leader or organizer under U.S.S.G. § 3B1.1(a) is a factual

finding that we review for clear error. United States v.

Cabrera, 288 F.3d 163, 173 (5th Cir. 2002).

He argues that the presentence investigation report

erroneously attributes some leadership activity to him because of

confusion caused by multiple co-conspirators using the nickname

“Chico.” Even if we were to accept Reyes’ contention and ignore

the evidence that he identifies, there would still be sufficient

evidence to support the district court’s finding that Reyes was a

leader or an organizer. Among other things, Reyes’ house in El

Salvador was the assembly point for many of the aliens; his wife

collected the initial payments for the smuggling fees for many of

the aliens; the “pollo” list for this and other smuggling trips

were found in Reyes’ house in El Salvador; he recruited and hired

the driver of the tractor-trailer, Felipe Torres Escudero; and he

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was in charge of this particular smuggling expedition.

Therefore, even if we accept all of Reyes’ assertions, the

district court’s finding that Reyes was a leader or organizer

pursuant to U.S.S.G. § 3B1.1 was plausible in light of the record

as a whole and we affirm that finding.

Conclusion

For the foregoing reasons, the district court’s judgment is

in all things AFFIRMED.

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