     Case: 09-40112     Document: 00511010364          Page: 1    Date Filed: 01/22/2010




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

                                                  FILED
                                                                          January 22, 2010

                                       No. 09-40112                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JOE ANTHONY CHAPA, III

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:08-CR-1466-1


Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.
PER CURIAM:*
        Joe Anthony Chapa, III, appeals the sentence imposed following his
conviction of transporting illegal aliens by means of a motor vehicle for private
financial gain. Chapa contends that the district court reversibly erred when it
enhanced his offense level under U.S.S.G. § 2L1.1(b)(6) because there was no
evidence that he intentionally or recklessly created a substantial risk of death
or serious bodily injury to the illegal aliens, there was insufficient evidence to


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40112


support the application of U.S.S.G. § 1B1.3(a)(1)(B) because his co-defendant’s
actions were not reasonably foreseeable to him, and his co-defendant’s actions
constituted at most negligence.
      This court reviews the district court’s application of the Sentencing
Guidelines de novo and its findings of fact for clear error. United States v.
De Jesus-Ojeda, 515 F.3d 434, 442 (5th Cir. 2008).         “[A] district court is
permitted to draw reasonable inferences from the facts, and these inferences are
fact-findings reviewed for clear error as well.” Id. (internal quotation marks and
citation omitted). This court “will uphold a district court’s factual finding on
clear error review so long as the enhancement is plausible in light of the record
read as a whole.” Id. (internal quotation marks and citation omitted).
      Chapa is accountable for “all reasonably foreseeable acts and omissions of
others in furtherance of [a] jointly undertaken criminal activity.”      U.S.S.G.
§ 1B1.3(a)(1)(B). The record reflects that, in August 2008, Chapa’s co-defendant,
Jesus Pacheco-Pina (Pacheco), led a group of illegal aliens through the South
Texas brush so they could avoid a Border Patrol checkpoint near Laredo as they
moved farther north into the United States. Although the trip was supposed to
take six hours, it ended up taking 36 hours because Pacheco got lost. Pacheco
did not bring sufficient food or water for the group. Pacheco was carrying a cell
phone. When the group got beyond the Border Patrol checkpoint, Pacheco called
Chapa from the cell phone and told Chapa where to meet the group. After
speaking to Pacheco, Chapa arrived at the rendezvous point driving a sport
utility vehicle. These facts support a reasonable inference that Chapa was
jointly involved in the illegal alien smuggling operation, and that it was
reasonably foreseeable to Chapa that the aliens would walk through the brush.

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                                 No. 09-40112


See De Jesus-Ojeda, 515 F.3d at 443; United States v. Mateo-Garza, 541 F.3d
290, 293 (5th Cir. 2008).
      Although there is no per se rule that guiding a group of aliens through the
South Texas brush in August is inherently dangerous, Mateo-Garza, 541 F.3d
at 294, there is ample evidence that, as it turned out, this August trip through
the South Texas brush was dangerous: The group ran out of food and potable
water during their 36-hour trip, and were thereby exposed to hunger,
dehydration, and heat exhaustion. Pacheco-Pina’s conduct in leading the group
into this harsh and hot terrain, at night, over a long distance with minimal
provisions was reckless under any common definition of the term. As there are
explicit facts to support the finding of reckless endangerment of the aliens, the
district court did not clearly err in applying the enhancement to Chapa. See
De Jesus-Ojeda, 515 F.3d at 443. Accordingly, the district court’s judgment is
AFFIRMED.




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