     Case: 09-10538     Document: 00511029816          Page: 1    Date Filed: 02/18/2010




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

                                                  FILED
                                                                          February 18, 2010
                                     No. 09-10538
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ERNESTO HERNANDEZ-PEREZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:08-CR-72-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Ernesto Hernandez-Perez appeals his 24-month
sentence for transporting illegal aliens for financial gain. The district court
enhanced the sentence pursuant to U.S.S.G. § 2L1.1(b)(6) after it determined
that Hernandez-Perez intentionally or recklessly created a substantial risk of
death or serious bodily injury to the aliens he transported. Hernandez-Perez
contends that the circumstances of his offense do not warrant the sentence
enhancement.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10538    Document: 00511029816 Page: 2         Date Filed: 02/18/2010
                                 No. 09-10538

      We review a district court’s interpretation of the Guidelines de novo and
reviews its factual findings for clear error. See United States v. Solis-Garcia, 420
F.3d 511, 514 (5th Cir. 2005).        It is undisputed that Hernandez-Perez
transported fifteen persons in a vehicle rated to carry seven passengers and that
thirteen of his passengers lacked safety restraints and were “lying on top of each
other” in the vehicle’s rear compartment. As the commentary to § 2L1.1 gives
“carrying substantially more passengers than the rated capacity of a motor
vehicle or vessel” as an example of reckless conduct that would support a
sentence enhancement under that Guideline, we perceive no error in Hernandez-
Perez’s sentence. See § 2L1.1, comment. (n.5).
AFFIRMED.




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