United States v. Waldin Soto-Romero
491 F. App'x 481
5th Cir.
2012
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Docket

UNITED STATES of America, Plaintiff-Appellee v. Seferino AVILA, Defendant-Appellant.

No. 11-41223

United States Court of Appeals, Fifth Circuit.

Nov. 6, 2012.

481

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Seferino Avila appeals the sentence imposed following his guilty plea convictions for conspiracy to launder monetary instruments and possession with intent to distribute 323 kilograms of cocaine. He argues that the district court clearly erred in finding that he was a manager or supervisor and in imposing a three-level increase in his offense level pursuant to U.S.S.G. § 3B1.1(b) and that the Presentence Report (PSR) did not have sufficient or reliable information to support the finding. He contends that because he objected to the enhancement, the Government was required to present evidence supporting the enhancement, but failed to do so. Avila asserts that his brother Alonzo micromanaged the drug trafficking organization; Avila did not make decisions or control others; he helped load and unload the cocaine; he did not recruit anyone; he did not receive a larger share of the profits; and his knowledge of the enterprise was limited to information he received from Alonzo.

Avila‘s objection to the enhancement did not require the Government to present additional evidence to support it. Because Avila did not provide any rebuttal evidence to refute the information in the PSR or demonstrate that the information was materially untrue, the district court was free to adopt the information in the PSR as its findings without further inquiry or explanation. See . The PSR provided that Avila directed or supervised the actions of his younger brother Alejandro, Julio Leon, Darrell Hamilton, Ricky Saunders, and other unindicted coconspirators at the direction of his brother Alonzo; that he supervised the logistics of transporting the drugs, obtaining drivers, loading, unloading, ensuring that the drugs arrived at the destination, collecting the drug proceeds, and conducting counter surveillance. The factual basis, which Avila expressly stated was true, also supported the sentencing enhancement. Because the district court‘s conclusion that Avila was a manager or supervisor is plausible in light of the record as a whole, the district court did not clearly err in imposing the three-level sentencing enhancement pursuant to § 3B1.1(b). See .

AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee v. Waldin Andres SOTO-ROMERO, Defendant-Appellant.

No. 11-51176

United States Court of Appeals, Fifth Circuit.

Nov. 6, 2012.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney‘s Office, San Antonio, TX, for Plaintiff-Appellee. Juan Manuel Gonzalez, Gonzalez & Otero, L.L.C., San Antonio, TX, for Defendant-Appellant.

Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Waldin Andres Soto-Romero appeals the 54-month term of imprisonment imposed following his guilty plea conviction for having been unlawfully found in the United States following prior deportation. Specifically, he challenges the district court‘s application of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), based upon his prior conviction for a crime of violence, namely, the Georgia offense of aggravated assault.

Soto-Romero contends that the Georgia statute of conviction is not an enumerated offense and does not implicate the residual “use of force” prong of § 2L1.2‘s definition. Because he did not object on this basis below, this court‘s review is for plain error only. See . To establish reversible plain error, Soto-Romero must show a forfeited error that is clear or obvious and that affects his substantial rights. See . If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See

Using a “common sense approach,” we hold that the district court did not plainly err in its determination that the generic, contemporary meaning of the offense of aggravated assault includes the intentionally-caused apprehension of injury, 2 Wayne R. LaFave, Substantive Criminal Law, § 16.3 (2d ed. 2003), and that Soto-Romero‘s Georgia offense falls within that generic, contemporary meaning. ; . Accordingly, the judgment of the district court is AFFIRMED.

Timelehin WIWO, Petitioner-Appellant v. Marina MEDINA, Respondent-Appellee.

No. 12-30589

United States Court of Appeals, Fifth Circuit.

Nov. 6, 2012.

Timelehin Wiwo, Pollock, LA, pro se.

Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.

PER CURIAM:*

Timelehin Wiwo appeals the dismissal of a 28 U.S.C. § 2241 petition he filed chal-

Notes

*
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. 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. 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.