Opinion
No. 10-20683 Summary Calendar.
July 28, 2011.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Andrew J. Williams, Kingwood, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:09-CR-557-2.
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
Francisco Gomez-Aguirre appeals the 52-month sentence imposed following his guilty-plea conviction of one count of conspiracy to harbor aliens for private financial gain, and three counts of concealing aliens from detection for private financial gain. He contends that the district court reversibly erred by applying a four-level enhancement under U.S.S.G. § 2L1.1(b)(7)(B) on the basis that the offense involved "serious bodily injury" to the aliens that were detained by him and his co-conspirators. Gomez-Aguirre acknowledges that the aliens were threatened and beaten, but argues that the harm experienced by the aliens constituted only "bodily injury," which warrants only a two-level increase under § 2L 1.1(b)(7)(A).
In the district court, Gomez-Aguirre did not preserve an objection that the harm suffered by the aliens did not constitute "serious bodily injury," and his argument is therefore reviewed for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). To establish plain error, Gomez-Aguirre must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If he makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. (citation omitted).
The determination whether the harm experienced by the aliens rises to the level of "serious bodily injury" rather than "bodily injury" is a question of fact. See United States v. Davis, 19 F.3d 166, 171 (5th Cir. 1994) (noting that the severity of a victim's injury is a question of fact); see also United States v. Garza-Robles, 627 F.3d 161, 169-70 (5th Cir. 2010) (affirming district court's factual finding that defendant suffered serious bodily injury). Because the district judge's factual finding was plausible in light of the record as a whole, Gomez-Aguirre fails to establish error, much less plain error. See United States v. Wilcox, 631 F.3d 740, 753 (5th Cir. 2011) (Even where the objection is pre-served, "the court must determine whether the district court's conclusion was plausible in light of the record as a whole" in assessing the propriety of a sentencing enhancement).
AFFIRMED.