     Case: 17-40216      Document: 00514386492         Page: 1    Date Filed: 03/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-40216
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                  Summary Calendar                              FILED
                                                                          March 14, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

OSMEL FONSECA-FIGUEREDO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-875-1


Before WIENER, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Osmel Fonseca-Figueredo appeals his 33-month
within-guidelines sentence for transporting undocumented aliens, challenging
the district court’s sentence enhancement to level 18 under U.S.S.G. §
2L1.1(b)(6) for intentionally or recklessly creating a substantial risk of death
or serious bodily injury. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-40216

      We review the district court’s application of § 2L1.1(b)(6) de novo, United
States v. Maldonado-Ochoa, 844 F.3d 534, 536 (5th Cir. 2016), and review its
factual findings for clear error, United States v. Rodriguez, 630 F.3d 377, 380
(5th Cir. 2011). A factual finding is not clearly erroneous if it is “plausible in
light of the record as a whole.” Rodriguez, 630 F.3d at 380 (internal quotation
marks and citation omitted).
      Fonseca-Figueredo’s contention that the district court impermissibly
placed the burden of proving the facts to defeat the enhancement on him is
unavailing, as he has taken the district court’s questions at sentencing out of
context. The district court did not err in applying § 2L1.1(b)(6) because the
record supports a finding that “the offense involved intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another person.”
§ 2L1.1(b)(6).   Reckless conduct for purposes of the enhancement includes
“carrying substantially more passengers than the rated capacity of a motor
vehicle” and “harboring persons in a crowded, dangerous, or inhumane
condition.” § 2L1.1, comment. (n.3).
      The evidence shows that Fonseca-Figueredo transported nine aliens
inside the cab of his tractor-trailer, which was equipped with only two seats.
Two aliens traveled in contorted positions inside shut closets not meant for a
person to stand, and seven were packed like “sardines” under two twin-size
mattresses in the sleeper compartment.            This evidence supports the
enhancement. See United States v. Mata, 624 F.3d 170, 172, 174-75 (5th Cir.
2010); United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006).
      We need not reach Fonseca-Figueredo’s assertion that the district court
clearly erred by accepting the translation of the word “encerrado” as locked up.
It is sufficient that an alien he transported was closed in a compartment that




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                                No. 17-40216

was not meant for a person and would have experienced difficulty exiting. See,
e.g., United States v. Rodriguez-Mesa, 443 F.3d 397, 403 (5th Cir. 2006).
      Fonseca-Figueredo did not preserve his additional argument that the
district court erred when it enhanced his sentence because he lacked the
requisite knowledge, and it is therefore subject to plain error review. See
United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Fact questions that a
district court may resolve on proper objection at sentencing can never be plain
error. United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). In any event,
Fonseca-Figueredo cannot show plain error given the aliens’ description of how
they came to hide in Fonseca-Figueredo’s truck, the GPS data from his truck,
and his contradictory statements to investigators. See Puckett United States,
556 U.S. 129, 135 (2009).
      AFFIRMED.




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