     Case: 18-40477      Document: 00514825552         Page: 1    Date Filed: 02/06/2019




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

                                    No. 18-40477                                FILED
                                  Summary Calendar                       February 6, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID CHARLES BRIMER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:17-CR-771-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       David Charles Brimer appeals the sentence imposed following his guilty
plea conviction of (1) conspiracy to transport undocumented aliens within the
United States and (2) transporting and attempting to transport undocumented
aliens for financial gain. He argues that the district court erroneously applied
U.S.S.G. § 2L1.1(b)(6) to enhance his sentence. We disagree and affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-40477     Document: 00514825552     Page: 2   Date Filed: 02/06/2019


                                  No. 18-40477

      We review the district court’s application of § 2L1.1(b)(6) de novo. United
States v. Maldonado-Ochoa, 844 F.3d 534, 536 (5th Cir. 2016). And we apply
a deferential clear-error standard of review to the district court’s factual
findings supporting the adjustment. United States v. Rodriguez, 630 F.3d 377,
380 (5th Cir. 2011). Because Brimer had an offense level of 14 without the
enhancement, § 2L1.1(b)(6) called for his offense level to be increased to 18 if
the transporting offense involved “intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another person.”
§ 2L1.1(b)(6). The focus of the inquiry is “whether the defendant’s conduct
posed inherently dangerous risks to the aliens being transported.” United
States v. Ruiz-Hernandez, 890 F.3d 202, 212 (5th Cir.) (internal quotation
marks, citation, and alteration omitted), cert. denied, 139 S. Ct. 278 (2018).
      The evidence here indicates that it was 96 degrees Fahrenheit outside,
and the aliens were in the cargo compartment of a van with no means to
circulate the air. Further, it indicates that they were seated on the floor of the
van amongst work-related tools and materials in an area where tools hung
from the walls. Therefore, the district court did not clearly err in finding that
the aliens were subjected to extreme temperature and were placed in danger
from falling and flying tools in the case of an accident. Rodriguez, 630 F.3d at
380. These findings support the determination that the aliens in this case were
transported in a way that posed inherently dangerous risks of death or serious
bodily injury. See Ruiz-Hernandez, 890 F.3d at 212.
      Brimer argues, for the first time on appeal, that there was no evidence
to show that he knew that the aliens were in the back of his van or that they
were in a dangerous situation.        Without such evidence, he argues, the
Government did not meet its burden to establish that his conduct created any
intentional or reckless risk to the safety of the aliens. We review this argument



                                        2
    Case: 18-40477    Document: 00514825552     Page: 3   Date Filed: 02/06/2019


                                 No. 18-40477

only for plain error. See United States v. Garcia-Gonzalez, 714 F.3d 306, 315
(5th Cir. 2013). Unlike the case to which Brimer analogizes, United States v.
Balderas-Gonzalez, 264 F. App’x 415, 418 (5th Cir. 2008), the aliens in this case
were not secreted in an enclosed compartment such that Brimer would not
have been aware of their presence. In fact, Brimer argued strenuously at
sentencing that the aliens were separated from him only by a perforated
partition and that they could communicate with him easily because they were
right behind him. He points to nothing in the record indicating that he was
not aware of their presence, as was the case in Balderas-Gonzalez, id. On this
record, the district court did not clearly or obviously err by implicitly finding
that Brimer was aware that the aliens were in the cargo compartment of his
van and that he knew of the dangerous conditions. As such, Brimer cannot
show plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      There are sufficient facts here to support the district court’s application
of § 2L1.1(b)(6) to enhance Brimer’s sentence. Accordingly, the judgment of
the district court is AFFIRMED.




                                       3
