United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 31, 2006
Charles R. Fulbruge III
Clerk
No. 05-40632
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ALVAREZ-TERAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(7:04-CR-722-5 )
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Juan Alvarez-Teran appeals the sentence
imposed following his guilty-plea conviction for conspiracy to
bring undocumented aliens into the United States for private
financial gain. He contends that the district court clearly erred
when it enhanced his sentence under U.S.S.G. § 2L1.1(b)(6) in
reliance on information that Alvarez transported aliens in a pickup
truck. He also urges that there was insufficient evidence to show
that he knew or reasonably should have foreseen that the sexual
assault of a minor was committed in furtherance of the conspiracy,
*
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this opinion should not be published and is not precedent except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.
and that there was insufficient evidence to show that any other
sexual assault occurred.
We review the factual findings of the district court for clear
error. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.
2005); United States v. Villanueva, 408 F.3d 193, 203 n.9 (5th
Cir.), cert. denied, 126 S. Ct. 268 (2005).
Alvarez’s argument that the district court applied the four-
level enhancement of § 2L1.1(b)(6) based on a finding that he
transported aliens in the bed of a pickup truck is without merit.
The record reflects that the district court relied on the facts
contained in the presentence report detailing physical and sexual
abuse when applying this enhancement.
Further, the facts of the presentence report and the testimony
of Agent Jose Ovalle support the district court’s finding that
physical and sexual abuse of aliens occurred in relation to
Alvarez’s conduct and that he either knew of the conduct or it was
reasonably foreseeable. Witnesses and co-defendants stated that
Alvarez was directly involved in transporting females to a stash
house in McAllen, Texas, for the purpose of their performing sexual
favors. Additionally, Alvarez was one of the leaders of the
smuggling organization. The district court’s findings were not
clearly erroneous.
Alvarez also contends that his sentence is unconstitutional in
light of United States v. Booker, 543 U.S. 220 (2005), because his
sentence was enhanced based on factual findings by the district
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court to which he did not admit and were not proved to a jury
beyond a reasonable doubt. Alvarez was sentenced after the
decision in Booker and thus pursuant to an advisory guidelines
scheme. The district court’s factual findings under an advisory
guidelines scheme did not violate his Sixth Amendment right to a
jury trial. See Booker, 543 U.S. at 233, 259.
Accordingly, the judgment of the district court is
AFFIRMED.
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