United States v. Jose Olivares
2016 U.S. App. LEXIS 15099
| 5th Cir. | 2016Background
- Jose Olivares pleaded guilty to harboring aliens for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (v)(II), (B)(i).
- The PSR applied a U.S.S.G. § 2L1.1(b)(5)(B) enhancement (brandishing/threat with a weapon), raising Olivares’s offense level to 20.
- Three aliens in custody positively identified Olivares as the person who brandished a weapon to threaten them.
- Olivares objected at sentencing; district court overruled the objection and sentenced him to 66 months imprisonment plus two years supervised release within the advisory guidelines range.
- On appeal Olivares argued the photographic lineup was unduly suggestive (only his photo showed tattoos/facial hair), that aliens misidentified a different person in another lineup, and that no firearm was recovered.
- The Fifth Circuit reviewed factual findings for clear error and held Olivares failed to present competent rebuttal evidence showing PSR facts were materially untrue or unreliable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 2L1.1(b)(5)(B) enhancement was properly applied based on witness identifications that Olivares brandished a weapon | Olivares: lineup was unconstitutionally suggestive (unique tattoos/facial hair), prior misidentification of another person, and no firearm was found | Government: PSR identifications are reliable; defendant failed to provide competent rebuttal evidence; lack of recovered firearm does not preclude enhancement | Court affirmed enhancement; Olivares did not meet burden to rebut PSR; no clear error in district court's application |
Key Cases Cited
- United States v. Reyna-Esparza, 777 F.3d 291 (5th Cir. 2015) (standard of review and burden for PSR factual findings)
- United States v. Carbajal, 290 F.3d 277 (5th Cir. 2002) (PSR information presumed reliable absent competent rebuttal)
- United States v. Solis, 299 F.3d 420 (5th Cir. 2002) (mere objections insufficient as competent rebuttal)
- United States v. Cervantes, 706 F.3d 603 (5th Cir. 2013) (defendant bears burden to show PSR facts materially untrue)
- Ballard v. Burton, 444 F.3d 391 (5th Cir. 2006) (unpublished decisions may be persuasive authority)