     Case: 17-40128      Document: 00514222168         Page: 1    Date Filed: 11/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 17-40128                                   FILED
                                  Summary Calendar                          November 2, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VANESSA AGUAYO,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 5:16-CR-965-2


Before STEWART, Chief Judge, and PRADO and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Vanessa Aguayo appeals the 37-month sentence that was imposed
following entry of her guilty plea to transporting illegal aliens. She challenges
the U.S.S.G. § 2L1.1(b)(6) enhancement for intentionally or recklessly creating
a substantial risk of death or serious bodily injury; the U.S.S.G. § 3B1.4




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40128

enhancement for using minors to assist in avoiding detection of the offense;
and the substantive reasonableness of her sentence.
      We review a district court’s interpretation of the Guidelines de novo and
the district court’s findings relative to the § 2L1.1(b)(6) enhancement for clear
error. United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). The
record reflects that Aguayo and her sister agreed to smuggle undocumented
aliens from Mexico into the U.S.         They caravanned together with the
undocumented aliens in separate vehicles. At a border checkpoint, two aliens
were discovered in the cargo area of a sports utility vehicle (SUV); the aliens
were covered with blankets, heavy luggage, and a stroller, among other items.
As a preliminary matter, we conclude that the district court did not err in
finding that Aguayo was accountable for the placement of the aliens in the
SUV. See U.S.S.G. § 1B1.3(a)(1)(B). Furthermore, the district court did not
err in finding that placing the aliens in the cargo area of the SUV covered in
heavy items created a substantial risk of injury to the aliens. See United States
v. Mata, 624 F.3d 170, 172, 174-75 (5th Cir. 2010).
      A § 3B1.4 enhancement applies when a defendant decides “‘to bring a
minor along during the commission of a previously planned crime as a
diversionary tactic or in an effort to reduce suspicion.’” United States v. Powell,
732 F.3d 361, 380 (5th Cir. 2013) (quoting Mata, 624 F.3d at 175). “To trigger
the enhancement, a defendant must take some affirmative action to involve the
minor in the offense”; mere presence is insufficient. Powell, 732 F.3d at 380
(internal quotation marks and citation omitted). “When a defendant’s crime is
previously planned—when, for example, she leaves the house knowing she is
on her way to . . . pick up a person who is unlawfully present in the United
States—the act of bringing the child along instead of leaving the child behind
is an affirmative act” involving the minor. Mata, 624 F.3d at 176.



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                                 No. 17-40128

      Evidence establishing more than mere presence supports the district
court’s determination that Aguayo used minor children to avoid detection of
the offense. See id. Aguayo knew she would be transporting aliens. Because
Aguayo left her house knowing that she was going to commit the subject
offense, “the act of bringing the [children] along instead of leaving [them]
behind is an affirmative act that involves the minor in the offense.” Id. For
the foregoing reasons, the district court did not err in applying the § 3B1.4
enhancement. See id.
      Aguayo asserts that the 37-month sentence is unnecessarily harsh
because she transported only one alien who was seated comfortably inside her
vehicle; her offense was non-violent and resulted in no damage or injury to
anyone, nor loss of property; and that the district court erroneously gave
weight to the enhancements for substantial risk of death or injury and use of
a minor. A district court must properly calculate the guidelines range and
make an individualized assessment based on the facts of the case in light of
the 18 U.S.C. § 3553(a) factors; the sentence should be sufficient, but not
greater than necessary, to comply with the goals of § 3553(a). Gall v. United
States, 552 U.S. 38, 49-50 (2007); § 3553(a). “A discretionary sentence imposed
within a properly calculated guidelines range is presumptively reasonable.”
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). The
presumption of reasonableness “is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The district court imposed a sentence within the guidelines range that is
entitled to a presumption of reasonableness. See Campos-Maldonado, 531



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                                  No. 17-40128

F.3d at 338. In sentencing Aguayo, the district court adopted the findings and
calculations   in    the   presentence   report,    considered    the   mitigating
circumstances articulated by counsel, noted the seriousness of the offense and
Aguayo’s extensive criminal record, expressed concern about involving minors
in the offense, and considered the § 3553(a) factors. We find no error in the
district court’s sentence, see United States v. Rodriguez, 523 F.3d 519, 522, 525-
26 & n.1 (5th Cir. 2008), and hold that Aguayo has failed to rebut the
presumption of reasonableness. See Cooks, 589 F.3d at 186.
      Accordingly, the judgment of the district court is AFFIRMED.




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