     Case: 14-41184      Document: 00513264239         Page: 1    Date Filed: 11/09/2015




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


                                      No. 14-41184
                                                                                     FILED
                                                                             November 9, 2015
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA                                                             Clerk

                                                 Plaintiff – Appellee
v.

FRANCISCO HERNANDEZ

                                                 Defendant – Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:14-CR-779


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Francisco Hernandez pleaded guilty to one count of transporting an alien
within the United States for financial gain. He challenges the district court’s
application of a sentencing enhancement pursuant to section 2L1.1.(b)(6) of the
Guidelines, which applies to smuggling conduct that creates a substantial risk
of death or serious bodily injury. The district court applied that enhancement
based on Hernandez’s instruction to the individuals being smuggled that they
“run” after border patrol stopped his vehicle. As a result, two of the aliens


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41184
crossed a highway with one being hit by a truck. Because the district court did
not clearly err in applying the enhancement, we AFFIRM.
                                          I.
       Hernandez agreed to transport five individuals from a stash house near
the border to Falfurrias, Texas in exchange for $400 plus fuel. During the
journey north on U.S. Highway 281, at around 11:50 p.m., a Customs and
Border Patrol agent noticed Hernandez’s pickup truck and another one driving
in tandem. The agent also observed that Hernandez’s truck appeared to carry
a heavy load with several individuals onboard. The agent initiated a stop, and
Hernandez came to a stop on the shoulder. After Hernandez told them to run, 1
the four passengers got out of the truck and fled. Two ran east, away from the
highway and over a fence toward a neighboring ranch. The other two ran west
across the highway. The first made it safely across the road, but the second,
Santos Eliseo Iracheta-Rodas, was struck by a tractor trailer and seriously
injured. Iracheta-Rodas and two other passengers were apprehended and
identified as being undocumented. Iracheta-Rodas was taken to a nearby
hospital where he was treated for a broken pelvis, broken vertebrae, and
rhabdomyolsis.
       When questioned by agents after the stop, Hernandez admitted that he
had agreed to transport the five individuals knowing that they were
undocumented. He entered a guilty plea to one count of transporting an alien
for financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II),
and 1324(a)(1)(B)(i).
       The Presentence Report started with a base offense level of 12. It then
increased the offense level to 18 pursuant to U.S.S.G. § 2L1.1(b)(6) based on


       1One of the passengers informed agents that Hernandez told them to run. Hernandez
does not challenge that he said this, only that this conduct does not support application of
the enhancement.
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                                     No. 14-41184
the intentional or reckless creation of a substantial risk of death or serious
bodily injury. It next applied a four-point enhancement pursuant to U.S.S.G.
§ 2L1.1(b)(7)(B) because one of the aliens suffered serious bodily injuries.
Hernandez filed objections, which the court overruled at the sentencing
hearing.    At that hearing, however, the court did grant reductions in the
offense level for acceptance of responsibility and early disposition that resulted
in a total offense level of 17. The court then sentenced Hernandez to a prison
term of 24 months, the bottom of the advisory Guideline range. In announcing
the sentence, the court explained that “these situations can get very dangerous
very quickly” and had Hernandez “stopped to think for a second about how
dangerous that was,” he would not have told the passengers to run.
                                         II.
      The government contends that Hernandez did not challenge the
subsection 2L1.1(b)(6) enhancement in district court other than arguing that
it was “double counting” when applied with the subsection (b)(7) enhancement,
which was applied because serious bodily injury actually occurred (he does not
assert the “double counting” argument on appeal).                Although Hernandez
labelled his written objection with a reference to the subsection (b)(7)
enhancement, the substance of the objection addresses the risk issue that only
subsection (b)(6) implicates: “Crossing a highway is not per se dangerous
(walking through the South Texas brush is not per se reckless endangerment,
see United States v. Garza, 541 F.3d 290 (5th Cir. 2008)).” 2 That is the exact
argument he is raising on appeal. Because we find that Hernandez raised this
issue below, we review for clear error—rather than the more stringent plain



      2 Section (b)(7) applies if “any person died or sustained bodily injured,” without
mentioning the risk or dangerousness of the conduct. See United States v. Ramos-Delgado,
763 F.3d 398, 401 (5th Cir. 2014) (holding that the subsection (b)(7) enhancement includes
no causation requirements).
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                                     No. 14-41184
error—the district court’s determination that Hernandez’s instruction that the
men run away created a substantial risk of death or serious bodily injury. See
United States v. Garcia-Guerrero, 313 F.3d 892, 895 (5th Cir. 2002).
       Section 2L1.1(b)(6) applies “[i]f the offense involved intentionally or
recklessly creating a substantial risk of death or serious bodily injury to
another person.” The Guidelines commentary states that the enhancement
may apply to “a wide variety of conduct,” U.S.S.G. § 2L1.1, cmt. 5., but we have
never addressed a case with facts similar to this one. Many of our cases
concerning this enhancement involve crowded conditions inside a vehicle or
stash house. 3 United States v. Hernandez-Perez, 366 F. App’x 531, 532 (5th Cir.
2010) (vehicle); United States v. Magallan-Rodriguez, 530 F. App’x 318, 319
(5th Cir. 2013) (stash house). The commentary contemplates that both of those
situations may give rise to a finding that the offense created a substantial risk
of death or serious bodily injury. U.S.S.G. § 2L1.1, cmt. 5 (identify among
categories of conduct to which the enhancement apples both “carrying
substantially more passengers than the rated capacity of a motor vehicle or
vessel” and “harboring persons in a crowded, dangerous, or inhumane
condition”). But the same is true for Hernandez’s conduct. The commentary
directs that “[i]f subsection (b)(6) applies solely on the basis of conduct related
to fleeing from a law enforcement officer, do not apply an adjustment from §
3C1.2.” Id. Section 3C1.2 is a general enhancement, applicable to all cases not
just alien smuggling, for causing reckless endangerment during flight.
U.S.S.G. § 3C1.2. This instruction against double counting demonstrates that
the Sentencing Commission contemplated that fleeing from law enforcement


       3 Hernandez argues that application of the enhancement to his case should be
governed by the five-factor test from United States v. Zuniga-Amezquita, 466 F.3d 886, 889
(5th Cir. 2006). But it makes little sense to apply those factors directed at the danger of
conditions inside a vehicle—such as the availability of oxygen and ability to communicate
with the driver—to a case involving the risk of conduct occurring outside a vehicle.
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                                     No. 14-41184
is the type of conduct that could create a substantial risk of death or serious
bodily injury. See also United States v. Aguirre, 354 F. Appx. 916, 920 (5th Cir.
2009) (noting that driving a vehicle off the road to avoid law enforcement
“clearly ‘involved intentionally or recklessly creating a substantial risk of
death or serious bodily injury’”).
      The question then becomes whether the particular instruction to flee in
this case did create that risk. See United States v. Solis-Garcia, 420 F.3d 511,
516 (5th Cir. 2005) (“Defining the contours of this enhancement is dependent
upon carefully applying the words of the guideline in a case-specific analysis.”).
It is easy to conclude that instructing someone to dart across a United States
highway would create a substantial risk.             Hernandez argues that the
government produced no evidence of heavy traffic on Highway 281 when the
traffic stop occurred. Because the stop occurred close to midnight, he contends
that “it is more likely than not that the traffic was very light.” Maybe so, but
the late night timing also means that it was difficult for those fleeing to spot
oncoming traffic and for drivers on the road to spot the people crossing, as
illustrated by the tractor-trailer hitting Iracheta-Rodas. Nighttime darkness,
therefore, likely made this conduct riskier than if it had occurred in daylight.
      But Hernandez did not instruct the passengers to dart across the road.
He just told them to “run”.” Two ran across the road; two went the other
direction. That makes the application of the enhancement a closer call. But
even without specific instructions to cross the road, it was foreseeable that
some of them would. It is common for multiple suspects to scatter when fleeing
to increase the odds that at least some of them will not be apprehended.
Crossing the highway further increased the chances of successful flight, as the
pursuing agent may have been reluctant to cross the road (or at least slowed
in doing so) because of the danger it poses.         Finally, any flight from law
enforcement poses inherent risks. See Sykes v. United States, 131 S. Ct. 2267,
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                                  No. 14-41184
2273 (2011) overruled on other grounds by Johnson v. United States, 135 S. Ct.
2551 (2015) (“The attempt to elude capture is a direct challenge to an officer’s
authority. It is a provocative and dangerous act that dares, and in a typical
case requires, the officer to give chase.”); United States v. Watson, 611 F. App’x
647, 663 (11th Cir. 2015) (applying the 2L1.1(b)(6) enhancement to pilot of an
overcrowded vessel that was speeding without its lights on and then attempted
to evade the Coast Guard). Flight poses a risk that force will be used in an
attempt to apprehend the fleeing individual. Given the inherent risk of fleeing
combined with the likelihood that some of the passengers would respond to
Hernandez’s instruction to “run” by doing what two of them in fact did—run
across a highway—the district court did not clearly err in applying the
enhancement. Cf. Aguirre, 354 Fed. Appx. At 920 (affirming application of
enhancement to vehicle that left the road to flee officers and ended up
crashing). We thus conclude that the district court did not clearly err in
concluding that Hernandez’s instruction that his passengers run to avoid law
enforcement warranted application of the enhancement.
      The judgment of the district court is AFFIRMED.




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