     Case: 17-40414      Document: 00514395307         Page: 1    Date Filed: 03/21/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 17-40414                              FILED
                                  Summary Calendar                       March 21, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RIGOBERTO MATA, III,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:16-CR-897-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Rigoberto Mata, III, appeals his concurrent, 34-month, within-guidelines
sentences for conspiring to transport and move an undocumented alien within
the United States and transporting and moving and attempting to transport
and move an undocumented alien within the United States for private
commercial gain.         Mata challenges the district court’s application of
enhancements under U.S.S.G. § 2L1.1(b)(6) and (b)(7). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40414

      We review the district court’s interpretation of the Guidelines de novo
and its factual findings for clear error. See United States v. Fernandez, 770
F.3d 340, 342, 344-45 (5th Cir. 2014).       “A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole.” United States v.
Coleman, 609 F.3d 699, 708 (5th Cir. 2010). We also review the district court’s
relevant conduct determination for clear error. See United States v. Wall, 180
F.3d 641, 644 (5th Cir. 1999).
      There was no error in enhancing Mata’s sentence pursuant to
§ 2L1.1(b)(6), which applies “if the offense involved intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another person.”
Mata was part of a conspiracy to transport eleven undocumented immigrants,
some of whom were driven, unrestrained, in the bed of his coconspirator’s
pickup truck. “We have repeatedly held that the [§] 2L1.1(b)(6) enhancement
is appropriate where the defendant transported unrestrained aliens in the bed
of a pickup truck.” United States v. Maldonado-Ochoa, 844 F.3d 534, 537 (5th
Cir. 2016).   Given Mata’s ability to observe his coconspirator’s truck, the
district court did not clearly err in finding that Mata could reasonably foresee
that the undocumented immigrants would be transported in a manner that
created a substantial risk of serious bodily injury.              See U.S.S.G.
§ 1B1.3(a)(1)(B) (relevant conduct includes reasonably foreseeable acts by
others that are within the scope of, and in furtherance of, jointly undertaken
criminal activity).
      There likewise was no error in enhancing Mata’s sentence pursuant to
§ 2L1.1(b)(7), which applies if any person actually sustained bodily injury. At
least one of the individuals riding in Mata’s coconspirator’s truck suffered
serious injuries when, in an effort to evade authorities, Mata’s coconspirator
crashed the pickup. See § 2L1.1(b)(7)(B). The record supports that Mata could



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                                No. 17-40414

reasonably foresee the substantial risk of harm from transporting
unrestrained individuals as well as the likelihood that his coconspirator would
seek to evade authorities. See § 1B1.3(a)(1)(B); cf. United States v. De Jesus-
Ojeda, 515 F.3d 434, 442–43 (5th Cir. 2008) (holding substantial risk of injury
was reasonably foreseeable to defendant who participated in immigrant
smuggling scheme during the summer in Texas, even where defendant did not
know precisely how the smuggling would occur and did not personally escort
the immigrants). That Mata did not specifically foresee that his coconspirator
would crash the pickup truck is irrelevant. See De Jesus-Ojeda, 515 F.3d at
442–43.
      AFFIRMED.




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