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

                                                FILED
                                                                December 31, 2009
                               No. 09-40610
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

MARCEL DELON GOODMAN,

                                           Defendant-Appellant.


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:09-CR-144-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Marcel Delon Goodman appeals the 51-month sentence imposed pursuant
to his guilty plea conviction for transporting an undocumented alien in the
United States. Goodman argues that the district court clearly erred in applying
the reckless endangerment enhancement, pursuant to U.S.S.G. § 2L1.1(b)(6),
because he had not placed the transported aliens at a substantial risk of death




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 09-40610

or serious bodily injury. He argues that there were no aggravating factors
involved in transporting the aliens that warranted the enhancement.
      A defendant’s offense level may be increased to 18 if the offense involved
the defendant intentionally and recklessly creating a substantia risk of death or
harm to another person. § 2L1.1(b)(6). Although there is no single bright-line
test for determining the applicability of this adjustment, this court has provided
a non-exhaustive list of five factors to consider when applying this adjustment:
“the availability of oxygen, exposure to temperature extremes, the aliens’ ability
to communicate with the driver of the vehicle, their ability to exit the vehicle
quickly, and the danger to them if an accident occurs.” United States v. Zuniga-
Amezquita, 468 F.3d 886, 889 (5th Cir. 2006).
      Generally, carrying passengers in the cargo area of a sports utility vehicle
(SUV) would not justify a reckless endangerment enhancement, see id. at 889,
however, the district court found a number of aggravating factors to support the
enhancement in Goodman’s case. Based on the sworn statements of the aliens
and the photographs introduced into evidence, the district court found the
following relevant factors:    insufficient oxygen, extreme temperatures, the
aliens’s inability to communicate with the driver, and their inability to extricate
themselves quickly from the cargo area. Although Goodman disagreed with the
statements of the aliens, the district court’s findings were plausible in light of
the record presented. Cf. United States v. Angeles-Mendoza, 407 F.3d 742, 750
(5th Cir. 2005).
      In light of the evidence presented, the district court did not clearly err in
determining that the four aliens who were “crammed” on their sides on the floor
of the cargo area of a SUV vehicle, underneath a blanket and other objects, were
placed at a substantial risk of harm that justified the enhancement for reckless
endangerment. The sentence is AFFIRMED.




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