     Case: 15-40933      Document: 00513359203          Page: 1     Date Filed: 01/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-40933
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                  FILED
                                                                          January 27, 2016
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                 Plaintiff-Appellee

v.

SERGIO DAVID BRIONES-MARIN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-239-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Sergio David Briones-Marin appeals his sentence for harboring
undocumented        aliens   for    financial    gain    in   violation      of     8      U.S.C.
§ 1324(a)(1)(A)(iii), (a)(1)(A)(v)(II), and (a)(1)(B)(i).         He complains that the
district court erroneously applied the reckless-endangerment enhancement
under U.S.S.G. § 2L1.1(b)(6) because the offense involved harboring
undocumented aliens in a crowded, dangerous, or inhumane condition.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40933    Document: 00513359203      Page: 2   Date Filed: 01/27/2016


                                 No. 15-40933

      This court reviews challenges to the application of the sentencing
guidelines de novo. United States v. Torres, 601 F.3d 303, 305 (5th Cir. 2010)
(per curiam).
      Under § 2L1.1(b)(6), a defendant’s sentence for the offense of harboring
an undocumented alien is enhanced if the offense involved “intentionally or
recklessly creating a substantial risk of death or serious bodily injury to
another person.”     The commentary to the provision explains that the
enhancement applies to “a wide variety of conduct.” U.S.S.G. § 2L1.1 cmt. n.5.
Examples of qualifying conduct include “harboring persons in a crowded,
dangerous, or inhumane condition.” Id.
      Briones-Marin harbored 27 undocumented aliens in a one-bedroom, one-
bathroom stash house. The house was sparsely furnished with only a sofa,
kitchen table, and one air mattress.       Briones-Marin slept on the lone air
mattress, and the undocumented aliens slept on the floor with sheets. The
house had running water and electricity. Border patrol agents found little food
in the house, but there was evidence that food and water was being provided
for the undocumented aliens. The undocumented aliens were in the house for
several days, possibly up to 15 days. At the time the undocumented aliens
were found, the temperature outside was a mild 70 degrees. None of the
undocumented aliens requested medical treatment.
      Briones-Marin argues that § 2L1.1(b)(6) requires proof of a specific
danger in addition to overcrowding.        But such a requirement would be
inconsistent with the provision’s commentary, which lists the qualifying
conditions as “crowded, dangerous, or inhumane.” § 2L1.1 cmt. n.5 (emphasis
added). And this court has never announced such a requirement and has, in
fact, rejected substantially similar arguments that such a requirement exists.
See United States v. De La Cruz-Bautista, 607 F. App’x 373, 375 (5th Cir. 2015);



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    Case: 15-40933     Document: 00513359203     Page: 3    Date Filed: 01/27/2016


                                  No. 15-40933

United States v. Jasso-Vazquez, 579 F. App’x 267, 268 (5th Cir. 2014); United
States v. Trevino, 532 F. App’x 552, 552 (5th Cir. 2013).
      Still, application of the reckless-endangerment enhancement in this case
is, as the district court observed, “a close call.” But even if the district court
erred in applying the reckless-endangerment enhancement, its statements
during sentencing that the enhancement did not affect the selected sentence—
an upward variance of 72 months of imprisonment—rendered any error
harmless. “A procedural error during sentencing is harmless if the error did
not affect the district court’s selection of the sentence imposed.” United States
v. Garcia-Figueroa, 753 F.3d 179, 192 (5th Cir. 2014) (quotation marks and
citation omitted).
      The district court stated that it was “going to give the same sentence
regardless of whether that overcrowding enhancement should or should not be
applied.” The district court went on to explain that its chosen non-Guidelines
sentence was appropriate given that there were “so many other greater
influences on the [c]ourt’s sentence” under the [18 U.S.C.] § 3553(a) factors. In
particular, the court focused on Briones-Marin’s sexual assault of two female
undocumented aliens at the stash house.
      Because the district court’s statements at sentencing demonstrate that
the reckless-endangerment enhancement’s applicability did not affect its
selected sentence, any error is harmless.      See United States v. Gutierrez-
Mendez, 752 F.3d 418, 430 (5th Cir. 2014) (relying on similar statements to
conclude that any error in the application of sentence enhancements was
harmless).
      For the foregoing reasons, we AFFIRM.




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