          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                              FILED
                                                                             March 4, 2010

                                        No. 09-40678                     Charles R. Fulbruge III
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee
v.

ANTONIO RODOLFO TORRES,

                                                    Defendant - Appellant



                    Appeal from the United States District Court
                         for the Southern District of Texas



Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge.*

PER CURIAM:

      Defendant-Appellant Antonio Rodolfo Torres pleaded guilty to one count
of transporting an illegal alien within the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii). Torres contends the district court erred in adjusting his
offense level for “intentionally or recklessly creating a substantial risk of death
or serious bodily injury to another person” based on Torres’s transportation of
four illegal aliens in the sleeper compartment of his tractor-trailer, one of whom
was hiding under the sleeping area. U.S. Sentencing Guidelines Manual §


      *
          District Judge of the Southern District of Mississippi, sitting by designation.
2L1.1(b)(6). For the following reasons, we vacate the sentence and remand for
resentencing.
        On February 23, 2009, Border Patrol Agents conducted a search of
Torres’s tractor-trailer at the Sarita, Texas checkpoint. Two adults were found
in the sleeping area. After the adults exited, the agents heard an eight-year-old
child crying to her mother. The child then removed herself from the space under
the sleeping area and exited the tractor-trailer without assistance. The space
where she was hiding was approximately fifteen inches high, fifteen inches deep,
and thirty-six inches wide. It was solid on three sides, and the front was covered
by a vinyl curtain. The agents found a second child in the closet of the sleeping
compartment.
      Section 2L1.1(b)(6) provides as follows: “If the offense involved
intentionally or recklessly creating a substantial risk of death or serious bodily
injury to another person, increase by 2 levels, but if the resulting offense level
is less than level 18, increase to level 18.” U.S. Sentencing Guidelines Manual
§ 2L1.1(b)(6).    In the Presentence Report (“PSR”), the Probation Officer
recommended the reckless endangerment enhancement under § 2L1.1(b)(6).
Torres filed written objections to the PSR and renewed those objections at
sentencing.     In particular, he challenged the applicability of the reckless
endangerment enhancement, arguing that the eight-year-old hiding under the
sleeping area was not exposed to a substantial risk of death or serious bodily
injury. The district court overruled Torres’s objection regarding the reckless
endangerment enhancement and adopted the PSR as the court’s findings of fact.
      We review “a district court’s interpretation of the guidelines de novo and
its factual determination for clear error.” United States v. Solis-Garcia, 420 F.3d
511, 514 (5th Cir. 2005). Torres does not dispute the facts found by the district
court, but contends the district court erred in its interpretation of the guidelines

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and its application of factual findings to the reckless endangerment
enhancement. Thus, our review of the application of the guidelines is de novo.
      In deciding whether to apply the reckless endangerment enhancement,
district courts are to consider five non-exhaustive factors: (1) the availability of
oxygen; (2) exposure to temperature extremes; (3) the alien’s ability to
communicate with the driver of the vehicle; (4) the alien’s ability to exit the
vehicle quickly; and (5) the danger to the alien if an accident occurs. United
States v. Garza, 587 F.3d 304, 310 (5th Cir. 2009); United States v.
Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). It is not per se reckless
endangerment merely to transport aliens unrestrained in an area of the vehicle
not normally intended for travel. United States v. McKinley, 272 F. App’x 412,
413 (5th Cir. 2008) (unpublished) (finding enhancement not warranted where
one alien was found in the sleeper cab closet and three aliens were found
“beneath a mattress”); United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir.
2005) (finding enhancement not warranted where four aliens were lying in the
cargo area of a minivan).
      Here, the district court adopted the PSR as its findings of fact. In doing
so, it adopted the recommendation to apply the enhancement because “[t]he area
dimensions where the 9 year-old was concealed measured approximately 15
inches high by 15 inches deep by 36 inches wide. This confined space subjected
the child to a substantial risk of death or serious bodily injury and warrants the
adjustment.”
      While the space under the sleeping area in Torres’s tractor-trailer was
small, so was the child. Moreover, the child was not separated from the driver’s
cab area, was near her mother and the driver, and could communicate with
others. An agent testified that there was no lack of oxygen. Similarly, there was



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no finding that she was exposed to extreme temperatures, and the parties agree
the child exited the tractor-trailer without assistance.
       Section 2L1.1(b)(6) requires a case-specific analysis. Solis-Garcia, 420
F.3d at 516. While “[t]he application of the [§ 2L1.1(b)(6)] enhancement is meant
to be flexible; . . . its words must be given some restrictive meaning.” Id. Given
the fact findings as adopted from the PSR, we cannot conclude that Torres
created a substantial risk of death or serious bodily injury by transporting a
child in the space under the sleeping area of his tractor-trailer. Id.; see also
McKinley, 272 F. App’x at 414 (“On the evidence presented, there were no
extreme temperatures, the aliens could communicate freely with McKinley,
there were doors for relatively easy escape, there was normal airflow, and it was
not more dangerous to lie in the sleeper compartment than it would have been
to travel without a seatbelt.”). 1
       For the foregoing reasons, we VACATE Torres’s sentence and REMAND
for resentencing in accordance with this opinion.




       1
         To the extent the Government suggests that the enhancement applies for lack of a
seatbelt, this alone will not satisfy § 2L1.1(b)(6). Zuniga-Amezquita, 468 F.3d at 890 (“The
risk must, however, be greater than that of an ordinary passenger not wearing a seatbelt in
a moving vehicle.”).

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