United States v. Peña-Rodriguez

In United States v. Peña-Rodriguez, No. 23-40476 (5th Cir. Oct. 11, 2024) (unpublished), the Fifth Circuit affirmed three sentencing enhancements to the defendant’s sentence for harboring an undocumented person for commercial advantage or financial game. Judge James E. Graves, Jr., dissented in part, believing that the court should have remanded the case for resentencing.

Background: Peña-Rodriguez pled guilty to one count of harboring an undocumented person (an “alien,” under 8 U.S.C. § 1101(a)(3)) for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(i). Her Presentence Investigation Report (“PSR”) relied on several Border Patrol reports and an interview with one Border Patrol agent.

The PSR deemed Peña-Rodriguez a leader/organizer under USSG § 3B1.1(a) because she directed five or more co-conspirators for an extended period of time, harbored immigrants at her own home, used multiple people as guides and transporters, hired another individual, and sent and received multiple wire transfers from various individuals.

The PSR further enhanced the Sentencing Guidelines based on a finding that the offense involved 100 or more aliens. See USSG § 2L1.1(b)(2)(C). It calculated that number based on events from November 2021 through April 2023, and based on actions of Peña-Rodriguez, her boyfriend, and other conspirators.

Finally, the PSR enhanced the Guidelines under USSG § 2L1.1(b)(4) because an unaccompanied minor was found in a truck in November 2021, although the PSR had “no [other] information about [the truck’s] occupants.” Later that month, Peña-Rodriguez’s boyfriend was found driving the same truck. In September 2022, agents arrested a man who admitted to having been the original truck driver, and he said that he was paid to do it by Peña-Rodriguez.

Peña-Rodriguez objected to those three enhancements, but the district court overruled her objections and imposed a 78-month prison sentence.

Holding 1: The district court did not clearly err by finding that Peña-Rodriguez was a leader or organizer in the smuggling organization. Under USSG § 3B1.1, more than one person may be deemed a “leader” of an organization. Here, the PSR relied on Border Patrol information that Peña-Rodriguez and her boyfriend “coordinated an extensive smuggling operation spanning two years.”

Holding 2: The district court did not clearly err by finding that the smuggling operation involved more than 100 undocumented people. Peña-Rodriguez had specifically contested two incidents the PSR had attributed to her—if the court agreed with both, Peña-Rodriguez would have been responsible for less than 100 aliens.

The Fifth Circuit agreed as to the first incident because the PSR contained “no evidence that Peña-Rodriguez or any of her co-conspirators were implicated by any of the fifteen undocumented aliens found in that vehicle.” But unfortunately for Peña-Rodriguez, the other event was well supported. That time, the driver was interviewed, and he said he had been coordinating with a woman who went by the same nickname as Peña-Rodriguez. He also identified Peña-Rodriguez in a photo lineup.

Holding 3: The district court did not clearly err by imposing an enhancement for harboring an unaccompanied minor when the PSR had relied on law enforcement reports to that effect. In the district court, Peña-Rodriguez had not introduced contrary evidence. Instead, she argued that the PSR’s information about this incident was insufficiently reliable.

The Fifth Circuit found that the PSR’s information was sufficiently reliable, and Peña-Rodriguez failed to present “competent rebuttal evidence” to overcome the PSR’s claims. Specifically, the PSR relied on Border Patrol agents’ observations and investigation, which was a “sufficiently reliable basis for the finding in the PSR.”

Dissent: Judge Graves disagreed about the second and third holdings, and he would have remanded the case for resentencing. In short, he found insufficient evidence to support those enhancements. Judge Graves closely analyzed the PSR and other evidence, ultimately emphasizing that “[t]he PSR … cannot just include statements, in the hope of converting such statements into reliable evidence, without providing any information for the basis of the statements.” United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001) (internal marks and citation omitted).