United States of America, Plaintiff-appellee, v. Roberto Caton-garcia, Aka: Roberto Caton, Defendant-appellant, 91 F.3d 155 (9th Cir. 1996)

Before: FERNANDEZ and TASHIMA, Circuit Judges, and MERHIGE, District Judge.^** 

MEMORANDUM^*** 

Roberto Caton-Garcia appeals the sentence imposed following his guilty plea conviction for conspiracy to transport illegal aliens in violation of 18 U.S.C. § 371, 8 U.S.C. § 1324(a) (1) (A) (ii). We affirm.

The district court properly relied upon the testimony presented at a co-defendant's trial to determine whether Caton should receive a two-level increase for transporting between six and twenty-four aliens. See United States v. Notrangelo, 909 F.2d 363, 364-65 (9th Cir. 1990); see also U.S.S.G. § 6A1.3 comment. ("Any information may be considered, so long as it has 'sufficient indicia of reliability to support its probable accuracy.' "). The PSR's inclusion of those same facts gave Caton notice; and the court did allow the defendant "the opportunity to object to those facts and present supporting evidence in his own behalf at the sentencing hearing." Notrangelo, 909 F.3d at 365. The court could rely upon the factual findings of the presentence report. United States v. Navarro, 979 F.2d 786, 789 (9th Cir. 1992).

At the sentencing hearing, the district court noted that it was relying in part upon the testimony of Juan Carlos Castro-Jaramillo and Castro's father at the former's trial that twenty people had been transported. Caton's counsel at least agreed that six people got into the orange van. Caton also admits in his brief that the motor home carried approximately twenty illegal aliens on May 17, 1995. These numbers are sufficient to justify the two-level increase and they do not even take into account the transportation of Josefina Celiz-Cortez, whom Caton brought to the scene.

Because Caton admitted that he conspired with others, including Arturo Rendon-Hernandez and Castro, to transport illegal aliens, it was proper to include at least the person Caton personally picked up as well as the six people transported in the orange van driven by Castro. Cf. United States v. Valencia, 15 F.3d 149, 152 (9th Cir.) (per curiam), cert. denied, --- U.S. ----, 114 S. Ct. 2176, 128 L. Ed. 2d 896 (1994). While Caton may not have known exactly how many aliens would be transported, he obviously knew that it would be a substantial number and it is not at all improper to charge him with the seven who were transported to the scene by Rendon and caught¹  or even to add the one who accompanied Caton to the scene in his truck. See United States v. Nunez-Carreon, 47 F.3d 995, 998-99 (9th Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 2287, 132 L. Ed. 2d 289 (1995); United States v. Ogbuehi, 18 F.3d 807, 814 (9th Cir. 1994). Thus, Caton properly received an increase of two levels for transporting between six and twenty-four aliens.

AFFIRMED.