     Case: 10-41007     Document: 00511575603         Page: 1     Date Filed: 08/18/2011




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

                                                                            FILED
                                                                          August 18, 2011
                                     No. 10-41007
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TOMASA GARCIA-RAMIREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CR-57-8


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Tomasa Garcia-Ramirez (Garcia) appeals the 60-month, within-guidelines
sentence she received after she pleaded guilty to conspiracy to transport and
harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A). Garcia argues that
the district court erred when it imposed a two-level adjustment under U.S.S.G.
§ 2L1.1(b)(6) for reckless endangerment. Garcia does not contest the testimony
of Daniel Padilla, the lead case agent with the Immigration and Customs



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41007

Enforcement, that she transported 15 to 20 people in a camper behind a pickup
truck whose maximum load was 13.
      Section 2L1.1(b)(6), in pertinent part, provides for a two-level increase “[i]f
the offense involved intentionally or recklessly creating a substantial risk of
death or serious bodily injury to another person.” § 2L1.1(b)(6). Commentary
to the Guideline gives as examples of conduct to which the enhancement applies
“carrying substantially more passengers than the rated capacity of a motor
vehicle,” and “harboring persons in a crowded, dangerous, or inhumane
condition.” § 2L1.1(b)(6), comment. n.5. To determine the propriety of applying
§ 2L1.1(b)(6)’s reckless-endangerment enhancement, this court considers “‘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.
Rodriguez, 630 F.3d 377, 381 (5th Cir. 2011) (quoting United States v.
Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006)).
      This court has recognized that overcrowded conditions similar to those
attributed to Garcia’s offense have provided a basis for the enhancement. See
United States v. Cuyler, 298 F.3d 387, 388-91 (5th Cir. 2002). Additionally,
Agent Padilla’s testimony that the aliens would have been exposed to
temperature extremes and that the alien smuggling operation of which Garcia
was a part routinely transported aliens in crowded conditions without safety
restraints weighed in favor of the adjustment. See Rodriguez, 630 F.3d at 381;
United States v. Garza, 587 F.3d 304, 311 (5th Cir. 2009). Thus, the district
court’s finding that the lack of safety restraints, long distances, and overcrowded
conditions warranted the enhancement was not clearly erroneous. See Zuniga-
Amezquita, 468 F.3d at 889.
      Garcia also argues that the district court erred when it increased her base
offense level four levels under § 3B1.1(a). Section 3B1.1(a) provides for a
four-level increase to the total offense level of a defendant who “was an organizer

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                                  No. 10-41007

or leader of a criminal activity that involved five or more participants.” Section
§ 3B1.1(a) specifies two parts to the enhancement: the defendant’s conduct and
the number of participants. United States v. Curtis, 635 F.3d 704, 720 (5th Cir.
2011), petition for cert. filed (June 6, 2011) (No. 10-10931).
      Garcia makes no argument regarding the number of participants. By
failing to argue that the criminal activity involved fewer than five participants,
Garcia has waived this issue. See United States v. Stalnaker, 571 F.3d 428,
439-40 (5th Cir. 2009). As to Garcia’s conduct, Agent Padilla’s testimony
established that Garcia exercised decision making authority, participated in the
conspiracy, had a high degree of participation and planning or organizing the
smuggling, and exercised authority over at least two drivers. The district court’s
finding that Garcia was a leader or organizer under § 3B1.1(a) is plausible in
light of this testimony, and its decision to apply the four-level adjustment was
not clearly erroneous. See Curtis, 635 F.3d at 720; § 3B1.1, comment. (n.4).
      AFFIRMED.




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