from the United States District Court for the Southern
District of Texas
HAYNES, GRAVES, and DUNCAN, Circuit Judges
HAYNES, CIRCUIT JUDGE
Garcia-Solis, Jr., pleaded guilty to one count of conspiring
to transport undocumented aliens within the United States and
two counts of transporting undocumented aliens within the
United States. The district court enhanced Garcia-Solis's
sentence, concluding that he drove recklessly while
transporting the aliens based upon information in the
presentence report ("PSR"). Garcia-Solis claims
that the district court should not have imposed the
enhancement because the statements in the PSR did not
establish he drove recklessly. He also claims the district
court erred by refusing to allow him to testify at the
sentencing hearing. For the reasons set forth below, we
September 2017, United States Border Patrol
("USBP") agents began following a car driven by
Garcia-Solis. According to the PSR, during the pursuit
Garcia-Solis drove twenty miles over the speed limit, wove
through traffic, and ran a red light. When the USBP agents
drew closer to his car, he slowed and pulled to the shoulder
of the road, only to then speed off and travel at speeds of
up to 100 miles per hour through traffic. The USBP agents
lost sight of the car due to its speed but later found it
abandoned on the side of the road. Footprints led the USBP
agents to nearby brush where Garcia-Solis was hiding with the
four undocumented aliens he had been transporting.
pleaded guilty to one count of conspiring to transport
undocumented aliens within the United States and two counts
of transporting undocumented aliens within the United States
under 8 U.S.C. § 1324. But he objected to a proposed
Sentencing Guidelines enhancement for reckless endangerment
under U.S.S.G. § 2L1.1(b)(6). He filed written
objections to the PSR, arguing that he traveled within the
speed limits, changed lanes responsibly, and did not run a
sentencing hearing, he again objected to the factual
allegations and also argued his actions were not reckless.
During a back and forth discussion between the district judge
and Garcia-Solis's counsel about what the evidence was
and the basis of Garcia-Solis's challenge to the
recklessness recommendation in the PSR, his counsel stated,
"And if the Court would like, I could ask my client to
testify about what happened that day," to which the
district court responded, "Not right now." The
discussion continued about whether the information in the PSR
substantiated the claim of recklessness, with both sides'
counsel pointing out aspects of the PSR. The district court
was clearly aware of what Garcia-Solis contended the actual
facts were and specifically noted that the court would have
to accept Garcia-Solis's "testimony" and
disregard the unequivocal statements of "objective"
border patrols. After this lengthy discussion, the district
court determined that the PSR, which included testimony from
the USBP agents and two of the undocumented aliens, supported
application of the enhancement. Thereafter, Garcia-Solis was
given a full opportunity to allocute, during which he said
nothing about the facts of the alien transport. After a
further lengthy discussion of the prison sentence, location
of serving the prison sentence, and supervised release,
Garcia-Solis's attorney asked to be excused, never
claiming that he was not given the opportunity to put on
Garcia-Solis's testimony. The district court sentenced
Garcia-Solis within the Guidelines to 34 months of
imprisonment on the three counts, running concurrently, plus
one year of supervised release. He timely appealed.
argues that the district court erred by allegedly refusing to
allow him to testify and by imposing the enhancement. We
examine each argument and conclude that neither has merit.
Whether the district court erred by allegedly refusing to
allow Garcia-Solis to testify at the sentencing hearing.
argues that the district court violated Federal Rule of
Criminal Procedure 32(i) by refusing to allow him to testify.
Because Garcia-Solis did not object to the district
court's alleged denial, we review for plain error.
See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009). Under that standard, Garcia-Solis
must show "(1) an error (2) that was clear or obvious
(3) that affected his substantial rights." United
States v. Avalos-Martinez, 700 F.3d 148, 153 (5th Cir.
2012) (per curiam). If he does, "we have the discretion
to correct the error if it 'seriously affects the
fairness, integrity or public reputation of judicial
proceedings.'" Id. (quoting Puckett
v. United States, 556 U.S. 129, 135 (2009)).
Garcia-Solis has not shown the district court erred under
put, the district court did not prohibit Garcia-Solis from
testifying. Instead, it declined his attorney's offer to
have him testify "right now." Many pages of
transcript ensue in which the district court clearly
considered Garcia-Solis's statements via his attorney as
"testimony" but determined that the border patrol
officers were more objective and had no reason to lie.
Garcia-Solis was given a full opportunity to allocute and
said nothing about this. We thus conclude that there was no
prohibition and, thus, no error, particularly given the
deference owed to a district court in organizing the
sentencing process. See generally United States v.
Henderson, 19 F.3d 917, 927 (5th Cir. 1994) (noting that
"a sentencing court must be given deference to determine
whether a hearing is needed on particular sentencing
issues"). We also conclude that, even if there were such
a prohibition, it did not have a substantial effect on the
decision because the district court considered the statements
to which Garcia-Solis now says he would have testified. Thus,
the district court did not commit plain error on this issue.
Whether the district court erred by imposing an enhancement