USA v. Mario Medina, No. 09-40833 (5th Cir. 2010)
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Case: 09-40833 Document: 00511179597 Page: 1 Date Filed: 07/20/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED July 20, 2010 No. 09-40833 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MARIO MENDOZA MEDINA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:08-CR-1552-1 Before GARZA, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Mario Mendoza Medina was convicted by guilty plea for conspiracy to harbor aliens within the United States and was sentenced to 24 months of imprisonment and two years of supervised release. He appeals from that sentence and argues that the district court erred by applying U.S.S.G. § 2L1.1(b)(5)(B) for brandishing a dangerous weapon. He contends that there was no evidence that he personally brandished a weapon and that the adjustment cannot be applied through relevant conduct because the district * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-40833 Document: 00511179597 Page: 2 No. 09-40833 Date Filed: 07/20/2010 court failed to make a separate finding as to the scope of his agreement in the conspiracy. By adopting the presentence report ( PSR ), the district court made implicit findings based on the PSR s factual findings. See United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994). Therefore, the district court did not err by applying § 2L1.1(b)(5)(B) to Medina s sentence on the basis of relevant conduct. See United States v. Williams, 520 F.3d 414, 422 (5th Cir. 2008). Accordingly, the judgment of the district court is AFFIRMED. 2
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