     Case: 19-51060      Document: 00515412598         Page: 1    Date Filed: 05/12/2020




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

                                                                                 FILED
                                    No. 19-51060
                                                                             May 12, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

JOSE LUIS DIAZ-LIRA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:19-CR-447-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Jose Luis Diaz-Lira pleaded guilty to two counts of transportation of
illegal aliens, and the district court sentenced him to concurrent terms of 18
months of imprisonment and concurrent three-year terms of supervised
release. Diaz-Lira argues that the district court erred in applying the U.S.S.G.
§ 2L1.1(b)(6) enhancement because there was no evidence that the conditions



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-51060
of the Jeep Cherokee in which the aliens traveled created a substantial risk of
bodily injury or death. Diaz-Lira further contends that he was merely a guide
for the aliens and asserts that it was not foreseeable that the other participants
in the smuggling operation would utilize one vehicle to transport the 10 aliens.
      We review a district court’s interpretation and application of the
Guidelines de novo and its factual findings for clear error. United States v.
Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). There is no clear error if
the sentencing court’s finding is plausible in light of the record as a whole.
United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). We need not decide
whether the standard of review is de novo or for clear error because Diaz-Lira
fails under the less deferential de novo standard. See United States v. Frye,
489 F.3d 201, 209 (5th Cir. 2007).
      Section 2L1.1(b)(6) provides for a two-level increase if “the offense
involved intentionally or recklessly creating a substantial risk of death or
serious bodily injury to another person.” Reckless conduct under § 2L1.1(b)(6)
includes a “wide variety of conduct,” such as transporting persons in the trunk
of a motor vehicle and carrying “substantially more passengers than the rated
capacity of a motor vehicle.” § 2L1.1(b)(6), comment. (n.3).
      Regardless whether Diaz-Lira actually knew that the migrants would
travel in one vehicle, his role as a guide and in coordinating the meeting point
with the driver made it reasonably foreseeable that serious bodily injury or
death could occur based on the method of transportation. See United States v.
Najera, 915 F.3d 997, 1000, 1002 (5th Cir. 2019); United States v. De Jesus-
Ojeda, 515 F.3d 434, 443–44 (5th Cir. 2008).
      Similarly, the district court did not err in imposing the enhancement on
the basis of the number of aliens inside the Jeep Cherokee. As reflected in the
adopted presentence report, the Jeep Cherokee was overloaded with aliens,
increasing the risk of an accident due to tire failure, negatively impacted
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                                   No. 19-51060
vehicle handling, and increased stopping distance. If an accident or collision
occurred due to these problems or for any other reason, the aliens would have
been at an increased risk of injury or death because many of them would not
have had access to seat belts. See United States v. Torres, 601 F.3d 303, 305
(5th Cir. 2010). Additionally, it is possible that the aliens would have difficulty
exiting the vehicle quickly due to it being overloaded. See id. These factors
demonstrate the substantial risk of death or serious bodily injury. See id.
Accordingly, the district court did not err in imposing the § 2L1.1(b)(6)
enhancement. See § 2L1.1(b)(6), comment. (n.3); Torres-Hernandez, 843 F.3d
at 207; Zuniga, 720 F.3d at 590.
      AFFIRMED.




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