Case: 12-13862    Date Filed: 04/08/2013   Page: 1 of 4


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-13862
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:11-cr-00188-EAK-TBM-1

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                      versus

JOSE FRANCISCO GUERRA,

                                                   Defendant-Appellant.

                         __________________________

                   Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                 (April 8, 2013)

Before MARTIN, JORDAN, and FAY, Circuit Judges:

PER CURIAM:
      Jose Francisco Guerra appeals his 41-month sentence for conspiring to

transport 25 or more illegal aliens and for aiding and abetting the bringing in and

harboring of illegal aliens. See 8 U.S.C. § 1324(a)(1)(A)(v)(I)-(II). Mr. Guerra
              Case: 12-13862     Date Filed: 04/08/2013      Page: 2 of 4


argues that the district court erred when it applied a nine-level enhancement to his

offense level under U.S.S.G. § 2L.1.1(b)(2)(C) for transporting 100 or more illegal

aliens. After careful review, we find no error and affirm.

      Mr. Guerra is a Mexican citizen who has lived in the United States illegally

and been deported to Mexico on three separate occasions. Sometime before

September of 2010, Mr. Guerra formed an alien smuggling organization that was

responsible for transporting illegal aliens within the United States. In 2011, federal

agents made four separate arrests of individuals who were transporting illegal

aliens. Once apprehended, all of those individuals told the arresting officers that

they were working for Mr. Guerra.

      On June 9, 2011, Mr. Guerra was taken into state custody and eventually

interviewed by Agent Robert Vadasz from Border Patrol and Special Agent

Jennifer Silliman from Immigration and Customs Enforcement. As a fluent

Spanish speaker, Agent Vadasz conducted the interview while Agent Silliman—

who understands Spanish but does not consider herself fluent—took notes. During

the interview, Mr. Guerra informed the agents that he was responsible for

operating a stash house residence for illegal aliens while they awaited their

transportation, giving vehicles to seven to eight drivers working on his behalf, and

ultimately handing off the illegal aliens to them. He also indicated that his




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operation, all told, transported or arranged transport for over 100 but less than

1,000 illegal aliens.

      All of these facts were elicited at Mr. Guerra’s sentencing hearing through

the testimony of Agent Silliman. After all the evidence was presented, the district

court ruled, over Mr. Guerra’s objection, that the government had met its burden of

proof and applied a nine-level enhancement to Mr. Guerra’s offense level for

transporting 100 or more illegal aliens. On appeal, Mr. Guerra argues that it was

improper for the district court to rely on Agent Silliman’s testimony because it did

not bear sufficient indicia of reliability. In short, Mr. Guerra asserts that Agent

Silliman’s testimony is unreliable because his statements were in Spanish, Agent

Silliman is not fluent in Spanish, and there is ambiguity as to whether he stated that

he transported over 100 “people” or 100 “illegal aliens.”

      We review the district court’s findings of fact for clear error. See United

States v. McQueen, 

, 1169 (11th. Cir. 2012. The facts supporting a

sentencing guideline enhancement need only be established by a preponderance of

the evidence. See United States v. Turner, 

, 572 (11th Cir. 2010).

      In this case, the district court did not clearly err when it made the factual

finding that that Mr. Guerra admitted to transporting, or arranged transport for, 100

or more illegal aliens. First, Agent Silliman testified that, although not fluent, she

understood Spanish enough to comprehend approximately 90% of what she heard


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in the interview, took notes based on what she heard, and reviewed her report with

Agent Vadasz to make sure that she did not misunderstand something that was

said. These facts provided a sufficient basis for the district court to credit Agent

Silliman’s recollection of the interview with Mr. Guerra. Second, Agent Silliman’s

understanding of Mr. Guerra’s statement is amply supported by other evidence in

the record. For example, when the drivers who worked for Mr. Guerra were

arrested, all of the passengers were illegal aliens, and the drivers admitted that they

were transporting illegal aliens. In addition, Agent Silliman testified that Mr.

Guerra never made any mention of a legitimate transport company during his

interview with federal agents. Third, Agent Silliman’s testimony removes any

doubt as to whether she could have simply misunderstood Mr. Guerra. On direct

examination, the government asked Agent Silliman whether there was “any doubt

in [her] mind that [Mr. Guerra] was talking about illegal aliens as opposed to

lawfully situated aliens in the United States,” and she clearly responded, “No.”

      Under these circumstances, it was not clear error to credit Agent Silliman’s

testimony and apply a nine-level enhancement to Mr. Guerra’s offense level under

U.S.S.G. § 2L.1.1(b)(2)(C) based on his own admission that he transported 100 or

more illegal aliens.

      AFFIRMED.




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