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

                                                 FILED
                                                                         November 16, 2009
                                     No. 08-41208
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JORGE CAMPOS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                            USDC No. 5:08-CR-416-ALL


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jorge Campos appeals his conviction and 24-month sentence imposed
following his jury trial conviction for transporting an undocumented alien for
private financial gain.       He argues that the evidence was insufficient for a
rational trier of fact to find beyond a reasonable doubt that he was knowingly
transporting an illegal alien to further his illegal presence in the United States.
       A defendant can be convicted of violating 8 U.S.C. § 1324 if the
Government establishes that (1) an alien entered or remained in the United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-41208

States in violation of the law; (2) the defendant transported the alien within the
United States with the intent to further the alien’s illegal presence in this
country; and (3) the defendant knew or recklessly disregarded the fact that the
alien was in the country in violation of the law. See United States v. Nolasco-
Rosas, 286 F.3d 762, 765 (5th Cir. 2002); § 1324(a)(1)(A)(ii).
      Viewing the evidence in the light most favorable to the verdict, and giving
the jury’s credibility findings the deference due to them, a rational trier of fact
could have determined that the Government established the elements of the
offense beyond a reasonable doubt. See United States v. Lopez-Moreno, 420 F.3d
420, 437-38 (5th Cir. 2005). The testimony of the smuggled alien reflected that
the guide brought him to a particular gas station because a third party was
going to meet them there to transport the alien in accord with the smuggling
agreement. The fact that, upon its arrival, the guide walked directly to Campos’s
truck, which was unlocked and running, and knew that the alien could be hidden
in the bunk bed, raised a reasonable inference that the guide knew that the alien
was to be transported in that particular vehicle. Further, the evidence that
Campos left the vehicle unlocked and returned outside shortly after the alien
was secured in the vehicle also raised an inference of guilt. The jury heard the
testimony of Campos regarding his alleged lack of knowledge of the alien’s
presence and apparently did not find it to be credible.          The evidence was
sufficient for the jury to find that Campos knowingly transferred the illegal alien
to further the alien’s unlawful presence in the United States. Nolasco-Rosas,
286 F.3d at 765.
      Campos also argues that the district court erred in increasing his offense
level pursuant to U.S.S.G. 2L1.1(b)(6) for reckless endangerment because the
preponderance of the evidence did not show that he knowingly and intentionally
created a risk of substantial harm or death to the alien found in his truck.
      Although there is no single, bright-line test for determining the
applicability of the reckless endangerment adjustment, this court has provided

                                        2
                                  No. 08-41208

a non-exhaustive list of five factors to consider when applying this adjustment:
“the availability of oxygen, exposure to temperature extremes, the aliens’ ability
to communicate with the driver of the vehicle, their ability to exit the vehicle
quickly, and the danger to them if an accident occurs.” United States v. Zuniga-
Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). In the case of an unrestrained
aliens transported within the passenger compartment of a vehicle, a single
aggravating factor may be sufficient to warrant application of the reckless
endangerment adjustment. United States v. Rodriguez-Mesa, 443 F.3d 397, 403
(5th Cir. 2006). One such factor is the alien’s inability to extract himself from
the vehicle if it becomes necessary. Id.; see also United States v. Garza, ___ F.3d
___, 2009 WL 3491608 (5th Cir. Oct. 30, 2009)(difficulty of escape in case of an
accident supports reckless endangerment enhancement).
      The district court found that the alien was captured in the bunk bed and
that he may not have been able to escape if the truck was involved in an
accident. This finding was supported by the alien’s testimony that he could not
have released himself from the inside of the bed and from the configuration of
the closed bunk. The district court also noted that the vehicle was traveling on
the interstate highway, where all of the vehicles were traveling at high rates of
speed, and that the alien was in an extremely dangerous situation. In light of
the alien’s inability to extricate himself from the bunk bed in the event of an
accident, the district court did not clearly err in determining that the alien was
at substantial risk of serious harm and possibly death. The district court did
not err by applying the endangerment enhancement in determining Campos’s
offense level.
      AFFIRMED.




                                        3
