Case: 11-40493 Document: 00511703675 Page: 1 Date Filed: 12/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2011
No. 11-40493
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
SELEENA H. ESCOBEDO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-1206-1
Before JONES, Chief Judge, HAYNES, Circuit Judge, and ENGELHARDT,
District Judge.*
PER CURIAM:**
Appellant Seleena H. Escobedo (“Escobedo”) appeals her sentence to fifteen
months imprisonment following her guilty plea to transporting an illegal alien
by motor vehicle. 8 U.S.C. § 1324(a). Although only one alien was being
smuggled in the offense of conviction, the court applied the sentencing
guidelines’ relevant conduct provision, U.S.S.G. § 1B1.3, to enhance her sentence
*
District Judge of the United States District Court for the Eastern District of
Louisiana, sitting by designation.
**
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-40493
based on four other incidents involving five other aliens. See
U.S.S.G. § 2L1.1(b)(2)(A). The fifteen month sentence falls in the middle of the
resulting applicable guideline range of twelve to eighteen months.
Escobedo here challenges only the district court’s findings concerning two
of the “relevant conduct” incidents, those that occurred on August 9 and April 30,
2010. We review for clear error the district court’s finding that these two
incidents were part of the “same course of conduct or common scheme or plan”
as the offense of conviction. Section 1B1.3(a)(2); United States v.
Angeles-Mendoza, 407 F.3d 742, 750 (5th Cir. 2005).
Escobedo contends that the court clearly erred because although it found
that she was involved in a “conspiracy” with her family members, the
government proved at most only her presence in the cars with her mother and
sister when they were each stopped at the Falfurrias, Texas, checkpoint with a
passenger who was determined to be an illegal alien. See Section 1B1.3(a)(1)(B)
cmt. n.2 (describing “jointly undertaken criminal activity” as relevant conduct).
Regardless of the correctness of describing her as a “conspirator,” however, the
court also pointed to common factors among all of the transporting incidents
with which Escobedo was identified. The court noted the common method
employed – each vehicle (in five different incidents) carried only one or two
illegal alien passengers; members of Escobedo’s family were involved with her
in each event; all the vehicles travelled through the Falfurrias checkpoint; and
all of the incidents occurred within a few months’ time. The guidelines
commentary requires that only one common factor need link criminal events to
trigger the “common scheme or plan” basis for a sentencing enhancement.
U.S.S.G. Section 1B1.3 cmt n.9(A). Here, there were at least four common
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No. 11-40493
factors. This is not a case in which the court had to speculate as to Escobedo’s
involvement in the conduct of transporting aliens. Consequently, her reliance
on United States v. Evbuomwan, 992 F.2d 70 (5th Cir. 1993), is misplaced.
Instead, Escobedo here implicitly agreed that alien smuggling was a “family
enterprise.” Further, there was no clear error in the district court’s inference
that she was criminally culpable in the two challenged incidents.
After a review of the record, we find no clear error in the district courts
findings underlying the sentence and therefore AFFIRM.
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