     Case: 14-40506      Document: 00513002446         Page: 1    Date Filed: 04/13/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 14-40506                                   FILED
                                  Summary Calendar                             April 13, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

ELIAS ESCOBAR-HERNANDEZ,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-1148


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Elias Escobar-Hernandez appeals the sentence imposed following his
guilty-plea conviction for conspiracy to harbor undocumented aliens within the
United States. He argues that the district court erred in imposing a two-level
enhancement under U.S.S.G. § 2L1.1(b)(6) based on its finding that he
intentionally or recklessly created a substantial risk of death or serious bodily
injury to the aliens. He asserts that the district court erred in imposing this


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40506

enhancement because the aliens were not held in crowded or unsafe conditions
for a long time period and there was no evidence that the aliens were actually
uncomfortable or feared for their physical safety.
      Although Escobar-Hernandez raises a new argument challenging the
enhancement, he is essentially attempting to distinguish the cases in which
this court has upheld the application of this enhancement. His objection to the
enhancement was sufficient to preserve this issue for appeal. See United States
v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). We need not determine whether de
novo review or the more deferential clear-error review applies because we
would affirm under either standard of review.
      Section 2L1.1(b)(6) provides that a defendant’s offense level should be
increased two levels “[i]f the offense involved intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another person.”
The commentary to §2L1.2(b)(6), in the 2013 Guidelines under which Escobar-
Hernandez was sentenced, defined reckless conduct as follows:
      Reckless conduct to which the adjustment . . . applies includes a
      wide variety of conduct (e.g., transporting persons in the trunk or
      engine compartment of a motor vehicle, carrying substantially
      more passengers than the rated capacity of a motor vehicle or
      vessel, or harboring persons in a crowded, dangerous, or inhumane
      condition).
U.S.S.G. § 2L1.1 cmt. n.5 (2013).
      The district court did not err in applying the § 2L1.1(b)(6) enhancement
based on its finding that the aliens were housed in crowded, dangerous, or
inhumane conditions.     Eight of the aliens were housed in a 10 x 10 foot
detached room with one bed, one window, no bathroom, and no air conditioning
during July when the high temperatures were 97 to 99 degrees. The aliens
were instructed not to be loud, not to open the door (although the door was
open), and not to go outside. This court has upheld the application of this


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                               No. 14-40506

enhancement under similar circumstances.       See United States v. Jasso-
Vasquez, 579 F. App’x 267, 268 (5th Cir. 2014) (upholding enhancement where
132 aliens were held in a locked 400 to 600 square foot house, with no
electricity, no running water that was drinkable, and only one bathroom when
the temperature was approximately 85 degrees); United States v. Magallan-
Rodriguez, 530 F. App’x 318, 319-22 (5th Cir. 2013) (upholding enhancement
where approximately 47 aliens were held in several small buildings for many
weeks); United States v. Teran, 236 F. App’x 82, 83-84 (5th Cir. 2007)
(upholding enhancement where approximately 69 aliens were held in two
bedrooms of a house with no running water, no air conditioning, and limited
access to drinking water and restrooms).      This court has not held that
§ 2L1.1(b)(6) requires the Government to prove that aliens were held in such
dangerous conditions for long periods of time. Therefore, Escobar-Hernandez
has not shown that the district court erred in imposing the § 2L1.1(b)(6)
enhancement in the instant case. See Jasso-Vasquez, 579 F. App’x at 268;
Magallan-Rodriguez, 530 F. App’x at 319-22; Teran, 236 F. App’x at 83-84.
     AFFIRMED.




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