   Case: 11-40116       Document: 00511714887         Page: 1     Date Filed: 01/05/2012




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

                                                                            FILED
                                                                          January 5, 2012
                                       No. 11-40116
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee.
versus

SALOMON ROJAS-MENDOZA,

                                                  Defendant-Appellant,




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 2:10-CR-224-1




Before JONES, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*


       Salomon Rojas-Mendoza challenges his sentence for conspiracy to trans-
port illegal aliens resulting in serious bodily injury. The district court enhanced
the sentence pursuant to U.S.S.G. § 2L1.1(b)(6) after it determined that Rojas-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40116

Mendoza and his co-conspirator had recklessly created a substantial risk of
death or serious bodily injury to the aliens. Rojas-Mendoza contends that the
circumstances do not warrant the enhancement and that he was entitled to a
reduction because he played only a minor rule pursuant to U.S.S.G. § 3B1.2(b).
      Rojas-Mendoza agreed to help an unknown person smuggle illegal aliens
from Mexico. He traveled with that person from Houston to South Texas in a
stolen Chevy Tahoe. After staying at a motel, they met eight aliens with their
guides on a dirt road at 4:00 a.m; all eight were placed into the cargo area of the
Tahoe, with Rojas-Mendoza in the front passenger seat and the unknown person
driving. At about 5:30, they began to be pursued by law enforcement, at which
point the driver turned onto a caliche road. Because of fog and the wet, unpaved
condition of the road, the deputy backed off his pursuit but later encountered the
Tahoe on a grassy area near the caliche road. The vehicle had rolled over sev-
eral times; five of the aliens as well as Rojas-Mendoza were badly injured, two
aliens were dead, and the driver could not be found.
      Accepting the facts and recommendations of the presentence report
(“PSR”), including a sentencing enhancement because Rojas-Mendoza (and his
co-conspirator) had recklessly created a substantial risk of death or serious bod-
ily injury, the district court sentenced Rojas-Mendoza to 71 months’ imprison-
mentSSthe highest sentence in the guideline range for his offense level and crim-
inal history. At sentencing, Rojas-Mendoza objected to the U.S.S.G. § 2L1.1(b)(6)
enhancement and requested a reduction for playing only a “minor role” in the
conspiracy. The court overruled both objections.
      Because Rojas-Mendoza properly preserved the issues he raises on appeal,
we review the district court’s application and interpretation of the guidelines de
novo and its factual findings for clear error. United States v. Rodriguez, 630
F.3d 377, 380 (5th Cir. 2011) (citations omitted). Clear-error review requires
only that a factual finding be plausible in light of the record as a whole. Id. A

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                                       No. 11-40116

court cannot impose a sentence enhancement such as § 2L1.1(b)(6) unless the
government has proven any facts necessary to support the enhancement by a
preponderance of the evidence. Id. But the defendant bears the burden of proof
to show that he is entitled to a downward adjustment such as § 3B1.2(b). United
States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001).
       Rojas-Mendoza argues that placing eight people in the cargo area of a
Tahoe with its seats removed, without evidence of other aggravating factors such
as substantial overcrowding or obstacles preventing easy escape, does not “reck-
lessly creat[e] a substantial risk of death or serious bodily injury to another per-
son.” Further, Rojas-Mendoza contends that his co-conspirator’s choice to speed
down a rough road in an attempt to evade law enforcement was not reasonably
foreseeable to him and should not be attributable to him for purposes of the
enhancement.
       Without deciding whether transporting eight persons in the back of that
vehicle recklessly creates a substantial risk of death or serious harm,1 we con-
clude that the court did not err in finding that the actions of Rojas-Mendoza’s
unnamed co-conspirator were reasonably foreseeable to Rojas-Mendoza and cre-
ated a substantial risk of harm or death to others. Sentences for jointly under-
taken criminal acts should be based on “all reasonably foreseeable acts and omis-
sions of others in furtherance of the jointly undertaken criminal activity, that



       1
         Compare Rodriguez, 630 F.3d at 381 (finding that transporting three aliens in the
cargo area of a Ford Explorer does not create a substantial risk), and United States v. Solis-
Garcia, 420 F.3d 511, 516 (5th Cir. 2005) (finding that transporting four aliens lying in the
cargo area of a minivan does not create a substantial risk), with United States v. Mata, 624
F.3d 170, 175 (5th Cir. 2010) (finding that an alien hiding in the cargo area of a Ford Escape
under blankets, luggage, and a stroller created a substantial risk of harm), United States v.
Zuniga-Amezquita, 468 F.3d 886, 890 (5th Cir. 2006) (finding that a substantial risk was cre-
ated when five aliens were lying in the cargo area of a van with boxes and luggage stacked to
the ceiling on top of them), and United States v. Angeles-Mendoza, 407 F.3d 742, 751 (5th Cir.
2005) (finding that a substantial risk was created by putting aliens in the bed of a pickup
truck, and as many as ten in the cab, with the back seat removed).

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occurred during the commission of the offense of conviction.” U.S.S.G. § 1B1.3-
(a)(1)(B). Thus, we have previously upheld sentences for participants in alien
smuggling conspiracies that were enhanced under § 2L1.1(b)(6) even where the
defendant was not engaging in the dangerous transportation.2
      Although Rojas-Mendoza attempts to distinguish these cases by pointing
out that there was no evidence to show he was an experienced or veteran alien
smuggler, so his co-conspirator’s actions were unforeseeable, we agree with the
district court that the co-conspirator’s dangerous evasive maneuvers were rea-
sonably foreseeable by Rojas-Mendoza. He and his co-conspirator picked up the
aliens well before morning on a dirt road, so Rojas-Mendoza should have fore-
seen unsafe driving conditions. And that a co-conspirator would take evasive,
even recklessly hazardous action, to avoid detection and capture is almost inher-
ent in the nature of smuggling. Indeed, at sentencing the court stated that the
“two deaths, one person paralyzed from the waist down, many people injured
very badly, fractured scapulas, fractured ribs, [and] damage to lungs . . . is rea-
sonably anticipated in this type of transaction, since we see it way too much.”
      All parties agree that the co-conspirator’s actions fall well within the ambit
of recklessly creating a substantial risk of death or serious bodily harm. Con-
trary to Rojas-Mendoza’s contentions, applying § 2L1.1(b)(6) because of his co-
conspirator’s reckless driving would not mean that the enhancement would
apply in all alien-transporting cases involving motor vehicles, because the lan-
guage of § 1B1.3(a)(1)(B) imputes to conspirators only those actions actually
taken by their co-conspirators. Thus, this application of § 2L1.1(b)(6) would
apply in the instant case but not in cases such as Rodriguez or Solis-Garcia,
where there were no actual acts that created a substantial risk of harm or death.
      Rojas-Mendoza, portraying himself as a passive observer tagging along to

      2
      See United States v. De Jesus-Ojeda, 515 F.3d 434, 442-43 (5th Cir. 2008); Angeles-
Mendoza, 407 F.3d at 751-52; United States v. Aguirre, 354 F. App’x 916, 919-20 (2009).

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                                  No. 11-40116

learn the trade, also contends that the district court erred in refusing to grant
him a minor-role adjustment under § 3B1.2(b). A minor role adjustment applies
to a defendant “who is less culpable than most other participants.” U.S.S.G.
§ 3B1.2, comment 5. To qualify for the reduction, Rojas-Mendoza has the burden
of showing he is “substantially less culpable than the average participant” and
was “peripheral to the advancement of the illicit activity.” United States v.
Villanueva, 408 F.3d 193, 204 (5th Cir. 2005) (citations omitted). Whether he
was a minor or minimal participant is a factual determination that we review
for clear error. Id.
      The PSR established that Rojas-Mendoza joined the conspiracy to smuggle
aliens into the U.S., accompanied his co-conspirator from Houston to South
Texas, stayed with him in a hotel, picked up the aliens from the guides, accom-
panied the driver in the front passenger seat while the aliens were in the cargo
area, and, perhaps most importantly, was to receive compensation for his assis-
tance with the conspiracy. Based on these facts, the district court found that
Rojas-Mendoza was not “less culpable in this horrific conspiracy than anybody
else” and was more than “just a passenger along for the ride.”
      We agree with the district court’s application of the guidelines, and Rojas-
Mendoza, who bears the burden of proof, points to no additional evidence to show
he was only a minor participant. Additionally, contrary to his claims, the court
adequately explained the factual bases upon which it rejected the request for
sentence reduction by adopting the facts in the PSR and specifically pointing to
Rojas-Mendoza’s planned compensation for his role in the conspiracy. See
United States v. Gallegos, 868 F.2d 711, 713 (5th Cir. 1989).
      The judgment of sentence is AFFIRMED.




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