     Case: 16-40026      Document: 00513819894         Page: 1    Date Filed: 01/03/2017




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

                                                                                FILED
                                    No. 16-40026                          January 3, 2017
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANA LILIA MUNIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:15-CR-1043-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Ana Lilia Muniz appeals the 18-month sentence she received following
her guilty-plea conviction for transporting illegal aliens, in violation of 8 U.S.C.
§ 1324. She argues that (i) the district court erred by enhancing her sentence
pursuant to U.S.S.G. § 2L1.1(b)(6) based on a finding that she intentionally or
recklessly created a substantial risk of death or serious bodily injury to the
aliens by transporting them in the trunk of the vehicle she was driving; (ii) the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40026

district court erred when it—in overruling her objection to the § 2L1.1(b)(6)
enhancement—noted that driving slowly would not necessarily prevent an
accident and could cause an accident; and (iii) the district court erred in
applying a two-level enhancement pursuant to U.S.S.G. § 3B1.4 based on a
finding that she used her two minor children to assist in avoiding detection of
the offense.
The District Court’s Application of the § 2L1.1(b)(6) Enhancement
      We review a district court’s interpretation of the Guidelines de novo and
review the district court’s fact 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 transportation of aliens in the trunk of a vehicle is
specifically listed in the comments to § 2L1.1(b)(6) as the type of conduct
contemplated by the Sentencing Commission in drafting the guideline
provision. § 2L1.1, comment. (n.3); see United States v. Mateo-Garza, 541 F.3d
290, 294 (5th Cir. 2008) (stating that transporting persons in a trunk or engine
compartment of a vehicle per se creates a substantial risk of serious injury or
death because those areas are not designed to hold human passengers).
Accordingly, the district court did not err by enhancing Muniz’s sentence based
on its finding that she transported aliens in the trunk of the vehicle she was
driving.
The District Court’s Comment Regarding Slow Driving
      In the district court, Muniz objected to the application of the § 2L1.1(b)(6)
enhancement on the grounds that, inter alia, she was driving slow, which
created a safe condition.    In overruling her objection to the § 2L1.1(b)(6)
enhancement, the district court noted that driving slow on a highway does not
necessarily prevent an accident, and, in fact, can cause an accident. Muniz did
not object to the district court’s comment at the time, but argues on appeal that



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                                  No. 16-40026

nothing in her presentence report discusses whether slow driving can cause an
accident, and, accordingly, she did not have sufficient notice and an
opportunity to address the issue at sentencing. Because Muniz failed to raise
an objection below, we review the issue for plain error. See United States v.
Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). To show plain error,
Muniz must show a forfeited error that is clear or obvious and that affects her
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).
      Because the comments to § 2L1.1(b)(6) specifically provide that
transporting unlawful aliens in the trunk of a vehicle creates a risk of injury
for the purposes of § 2L1.1(b)(6), Muniz cannot show how any purported error
in the district court’s reasons for denying her objection to the § 2L1.1(b)(6)
enhancement affected her substantial rights. See Puckett, 556 U.S. at 135; see
also Mateo-Garza, 541 F.3d at 294; § 2L1.1, comment. (n.3).
The District Court’s Application of the § 3B1.4 Enhancement
      A § 3B1.4 enhancement applies “when a defendant ‘makes a decision 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 United States v. Mata, 624
F.3d 170, 175 (5th Cir. 2010)). “To trigger the enhancement, a defendant must
take some affirmative action to involve the minor in the offense because the
mere presence of a minor at the scene of the crime 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 smuggle drugs . . . 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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      In this case, circumstantial evidence beyond mere presence supports a
finding that Muniz used her two minor children to avoid detection of the
offense. See id. This was not a spur-of-the-moment crime. See id. at 177
& n.33. Rather, Muniz knew she would be transporting aliens before she
committed the crime. To the extent that it was necessary for Muniz to ensure
adult supervision of her minor children—which is far from clear given their
ages of 13 and nine and the fact that no evidence was presented establishing
as much—she chose not to do so. Because Muniz 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. at 176. Furthermore, Muniz’s presentence report
states that, after her arrest, Muniz’s “minor daughters were released to their
maternal aunt and uncle,” suggesting that Muniz did have options for child
care. Given the foregoing, the district court did not err in applying the § 3B1.4
enhancement.
      Accordingly, the judgment of the district court is AFFIRMED.




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