     Case: 09-41092   Document: 00511263055     Page: 1   Date Filed: 10/14/2010




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

                                                FILED
                                                                 October 14, 2010
                                  No. 09-41092
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

MARIA CECILIA MATA,

                                            Defendant-Appellant


                  Appeal from the United States District Court
                       for the Southern District of Texas




Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:
        Maria Cecilia Mata appeals the forty-five-month sentence imposed
following her plea of guilty to a charge of transporting an undocumented alien
for financial gain in violation of 8 U.S.C. § 1324. Mata contends that the district
court committed error by enhancing her sentence pursuant to U.S.S.G.
§§ 2L1.1(b)(6) & 3B1.4. She also contends that the district court committed plain
error by delegating to the probation officer the authority to determine whether
Mata would be required to participate in mental-health treatment as a special
condition of her supervised release. We conclude that both contentions are
without merit and affirm Mata’s sentence.
   Case: 09-41092        Document: 00511263055 Page: 2       Date Filed: 10/14/2010
                                     No. 09-41092

                                           I.
      At approximately 8:25 p.m. on May 27, 2009, Border Patrol agents stopped
a 2001 Ford Escape at the Interstate-35 checkpoint twenty-nine miles north of
Laredo, Texas. A Ford Escape seats five. Six people were in the car. Mata was
driving, her sixteen-year-old son was in the front seat, and seated in the back
were a friend of Mata’s who was over the age of eighteen, her friend’s minor
daughter, and Mata’s six-year-old daughter. In the cargo area behind the back
seat, underneath a pile of blankets, luggage, and a stroller, was a Mexican
National named Edgar Guerrero-Cruz.              Border Patrol agents discovered
Guerrero-Cruz while inspecting the vehicle at the checkpoint.            The agents
arrested Mata, who admitted to them that she was being paid to drive Guerrero-
Cruz, who she knew was illegally present in the United States, from Laredo to
San Antonio. Mata was charged in a one-count indictment with transporting an
undocumented alien for financial gain by means of a motor vehicle under 8
U.S.C. § 1324. She pleaded guilty without a plea agreement.
      At issue in this appeal are two sentence enhancements that the probation
officer applied after calculating Mata’s base offense level as twelve under the
United States Sentencing Guidelines.1 First, the probation officer enhanced
Mata’s offense level to eighteen on the ground that Mata’s “offense involved
intentionally or recklessly creating a substantial risk of death or serious bodily
injury to another person.”2 Second, Mata received a two-level enhancement
because the probation officer found that Mata “used or attempted to use a person
less than eighteen years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense.”3 Mata also received a two-level
reduction for acceptance of responsibility, so her final offense level was eighteen.


      1
          See U.S. SENTENCING GUIDELINES MANUAL § 2L1.1(a)(3) (2009).
      2
          See id. § 2L1.1(b)(6).
      3
          See id. § 3B1.4.

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                                     No. 09-41092

Mata objected to both enhancements at her sentencing hearing. The district
court overruled her objections, adopted the presentence report, and sentenced
Mata to a forty-five-month term of confinement.
       The district court also placed Mata on a three-year term of supervised
release following her release from custody. One of the conditions of Mata’s
supervised release is that she is required to participate in a mental-health
program “as deemed necessary by the Probation Department.” Mata did not
object to this condition before the district court. On appeal, she contends that
it was unconstitutional for the district court to delegate to the Probation
Department the determination of whether she would have to participate in a
mental-health program.


                                              II.
       We review the district court’s interpretation and application of the
Sentencing Guidelines de novo.4 A district court’s “‘[f]actual findings regarding
sentencing factors are entitled to considerable deference and will be reversed
only if they are clearly erroneous.’”5 A factual finding is clearly erroneous if,
after reviewing the entire evidence, the reviewing court “is left with the definite
and firm conviction that a mistake has been committed.” 6 A factual finding is
not clearly erroneous so long as it is “‘plausible in light of the record as a




       4
           United States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010).
       5
         United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (quoting United States
v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)). The district court must find that the government
has proven any fact necessary to support a sentence enhancement by a preponderance of the
evidence. See United States v. Conner, 537 F.3d 480, 491-92 (5th Cir. 2008) (citing U.S.
SENTENCING GUIDELINES MANUAL § 6A1.3 cmt.).
       6
         United States v. Castillo, 430 F.3d 230, 238 (5th Cir. 2005) (citation and internal
quotation marks omitted).

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whole.’”7 A court of appeals may not reverse a district court’s finding of fact
based only on its belief that, “‘had it been sitting as the trier of fact, it would
have weighed the evidence differently’” and reached a different conclusion.8


                                                    A.
          The district court did not err by applying the reckless-endangerment
enhancement under § 2L1.1(b)(6) of the Sentencing Guidelines. Whether Mata’s
conduct in transporting Guerrero-Cruz qualifies as “intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another person”
as required by § 2L1.1(b)(6) is a question of law, so our review is de novo.9 But
we review only for clear error the underlying factual findings on which the
district court based its legal conclusion.10
          The application of § 2L1.1(b)(6) “requires a fact-specific inquiry” 11 because
the reckless-endangerment enhancement is intended to apply to “a wide variety
of conduct.”12 “[A] single, bright-line test is not necessarily appropriate for a
guideline that must be applied to [the] wide variety of factual settings” in which
defendants transport aliens for financial gain.13                        Accordingly, we have
articulated a nonexclusive list of five factors to guide district courts in their
application of § 2L1.1(b)(6): “the availability of oxygen, exposure to temperature



          7
               Williams, 610 F.3d at 292 (quoting United States v. Miller, 607 F.3d 144, 148 (5th Cir.
2010)).
          8
        United States v. Charon, 442 F.3d 881, 891 (5th Cir.) (quoting United States v. Harris,
434 F.3d 767, 773 (5th Cir. 2005)), cert. denied, 549 U.S. 915 (2006).
          9
               See United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005).
          10
                See id.
          11
                United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006).
          12
                See U.S. SENTENCING GUIDELINES MANUAL § 2L1.1 cmt. 5 (2009).
          13
                Zuniga-Amezquita, 468 F.3d at 889.

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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.” 14
Only the fourth and fifth of those factors are pertinent to this case.
       Out of this fact-bound area of the law a few guiding principles have
emerged.          As to the fourth factor, we have affirmed the enhancement in
situations in which it would have been difficult for the alien to extricate herself
from the vehicle in the event of an emergency because the alien was jammed into
a compartment15 or wedged into a tight space.16                  We have also upheld the
imposition of the enhancement where the aliens, who were being transported in
a van, were completely surrounded by boxes “practically piled up to the top of the
van” that were too big for the aliens to easily move.17 As to the fifth factor, the
enhancement is proper only if the aliens would be in greater danger if an
accident occurred than “an ordinary passenger not wearing a seatbelt in a
moving vehicle.”18 As a result, the mere fact that an alien is transported in a
portion of the car that is not designed to hold passengers is not, without more,
sufficient to support the enhancement.19




       14
            Id.
       15
            See, e.g., United States v. Rodriguez-Mesa, 443 F.3d 397, 403 (5th Cir. 2006).
       16
            See, e.g., United States v. Garza, 587 F.3d 304, 309 (5th Cir. 2009).
       17
            Zuniga-Amezquita, 468 F.3d at 890.
       18
            Id. at 890.
       19
          See, e.g., Solis-Garcia, 420 F.3d at 516 (holding that a defendant who transported
four aliens in the cargo area of a minivan did not warrant the § 2L1.1(b)(6) enhancement
because the dangers “associated with riding in the cargo area . . . are generally the same
dangers that arise from an individual not wearing a seatbelt in a moving vehicle”); see also
United States v. Dixon, 201 F.3d 1223, 1233 (9th Cir. 2000) (reversing the district court’s
application of the reckless-endangerment enhancement where the defendant had transported
aliens in the trunk area of his hatchback car on the ground that “a person hiding in a
hatchback area easily could extricate himself by pushing up the lightweight, flimsy hatchback
cover”).

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       In this case, the district court made two findings in support of its decision
to apply the reckless-endangerment enhancement. First, the court found that
the stroller under which the Guerrero-Cruz was hiding would impede his ability
to exit the vehicle quickly because it was not lightweight, “clunky,” and “not that
easy to move out of the way.” Second, the court found that it was “likely” and
“highly foreseeable” that, in the event of an accident, the stroller “would cause
more damage” and “the injuries [to Guerrero-Cruz ] would be much more severe
than if he were just in the back covered with blankets.” Had we been sitting as
the trier of fact, we might have concluded that the stroller would not have
significantly impeded the alien’s ability to exit the vehicle.20 But the district-
court’s contrary finding—assisted as it was by its viewing of photos of the
stroller and other items covering Guerrero-Cruz, photos which have not been
made part of the record on appeal—is certainly plausible in light of the record
as a whole. So too is its finding that the presence of the stroller in the car
created a substantial risk that Guerrero-Cruz would suffer serious injury in the
event of an accident. We thus conclude that these findings of fact were not
clearly erroneous. As a consequence, the district court did not err by enhancing
Mata’s sentence for reckless endangerment under § 2L1.1(b)(6).21


       20
          Cf. United States v. McKinley, 272 F. App’x 412, 413 (5th Cir. 2008) (per curiam)
(unpublished) (vacating the defendant’s sentence after concluding that the defendant’s decision
to hide four adult, male aliens under a king-size mattress did not create a danger of
suffocation, reasoning that “[a] 15-pound mattress does not create a substantial risk of death
or serious bodily injury to four adult men” (citations, internal quotation marks, and brackets
omitted)). Although this unpublished decision does not bind us, see 5TH CIR . R. 47.5.4, we find
its reasoning persuasive.
       21
          We conclude with a warning to defense counsel. An appellate lawyer has an ethical
duty to not misrepresent, mischaracterize, or misquote the record in her filings with the Court.
See SUPREM E COURT OF TEXAS STANDARDS FOR APPELLATE CONDUCT , Lawyers’ Duties to the
Court 3 (1999). At sentencing, the district court ended its preliminary discussion of the
reckless-endangerment enhancement by stating, “I’ll hear anything else that [the defendant]
wanted to say, but I don’t see that under the circumstances here the objection is one that the
Court could sustain.” In her brief, Mata averred that the district court “asked for more
information because ‘the objection [was] one the Court could sustain.’” See Brief for Appellant
at 10. Appellant’s counsel thus represented to the Court that the district court said at

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                                              B.
       Nor did the district court err by applying the use-of-a-minor enhancement
under § 3B1.4 of the Guidelines. A defendant who “used or attempted to use a
person less than eighteen years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense” is subject to a two-level sentence
enhancement under § 3B1.4. A defendant uses or attempts to use a minor
within the meaning of § 3B1.4 if the defendant directs, commands, encourages,
intimidates, counsels, trains, procures, recruits, or solicits the minor.22 At issue
in this appeal is the portion of § 3B1.4 that authorizes the enhancement if the
defendant uses a minor to “assist in avoiding detection of . . . the offense.” The
determination of whether Mata used or attempted to use a minor to assist in
avoiding detection within the meaning of § 3B1.4 is a conclusion of law that we
review de novo, while any findings of fact made in support of that determination
we review for clear error.23
       We have suggested, but never held in a published opinion, that a
defendant who makes a decision to bring a minor along during the commission
of a previously planned crime as a diversionary tactic or in an effort to reduce
suspicion is subject to having her sentence enhanced under § 3B1.4.24                  We so
hold today, consistent with our previous unpublished decisions in United States




sentencing exactly the opposite of what the district court actually said. This was a blatant
misrepresentation of the record. The Court admonishes defense counsel to take care in her
future filings to abide by her duty of candor.
       22
            See U.S. SENTENCING GUIDELINES MANUAL § 3B1.4 cmt. 1 (2009).
       23
            See United States v. Molina, 469 F.3d 408, 413 (5th Cir. 2006)
       24
         See id. at 415 (noting that this court had previously upheld a § 3B1.4 enhancement
where “the defendant brought minor children on a drug run to avoid detection by law
enforcement”) (citing United States v. Gutierrez, 251 F.3d 156, 2001 WL 300644, at *1 (5th Cir.
Feb 28, 2001) (per curiam) (unpublished table decision), cert. denied, 534 U.S. 823 (2001)).

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v. Zertuche,25 United States v. Farias,26 United States v. Gutierrez,27 and United
States v. Ibarra-Sandoval.28         This holding takes heed of the general rule that
the defendant must take some affirmative action to involve the minor in the
offense29 and that “[a]bsent other evidence, the mere presence of a minor” at the
scene of a crime “is insufficient to support the application of § 3B1.4.” 30 When
a defendant’s crime is previously planned—when, for example, she leaves the
house knowing she is on her way to smuggle drugs, or intending to pick up a
person who is unlawfully present in the United States—the act of bringing the
child along instead of leaving the child behind is an affirmative act that involves


       25
           228 F. App’x 462, 463 (5th Cir) (per curiam) (“In light of the undisputed evidence
that a co-defendant was to smuggle a quantity of cocaine hidden in an infant carrier seat and
that the co-defendant's infant child was brought to the bus station, we conclude that the
district court did not clearly err in finding that [the § 3B1.4] enhancement was warranted.”),
cert. denied, 552 U.S. 921 (2007).
       26
          112 F. App’x 374, 374 (5th Cir. 2004) (per curiam) (“Farias admitted that he was
instructed to take his children on drug-smuggling trips to avoid detection by law enforcement,
and his children accompanied on two such trips. He failed to provide any other plausible
explanation for taking his children with him on those trips. The district court did not clearly
err [in applying § 3B1.4].”).
       27
          251 F.3d 156, 2001 WL 300644, at *1 (“The district court could infer that Gutierrez
had orchestrated the presence of his children in an attempt to give the appearance of a family
traveling together and thereby avoid detection by law enforcement. Such an inclusion of
children is a ‘use’ of minors for purposes of § 3B1.4.”).
       28
            216 F.3d 1079, 2000 WL 729068, at *1 (5th Cir. May 8, 2000) (unpublished table
decision) (“[T]he guideline is broad enough to encompass circumstances where adult criminals
benefit from a minor's passive participation in the criminal scheme. . . . [W]e conclude that the
district court was entitled to infer that Ibarra and Torres transported the small child in the
vehicle as part of a strategy calculated to reduce the chance that law enforcement agents
would delay their trip to make a careful inspection of the vehicle for drugs. We conclude that
this use of a child as a diversionary tactic to transport drugs undetected across the border is
a ‘use’ of a minor under § 3B1.4.”), cert. denied, 531 U.S. 939 (2000).
       29
         Cf. United States v. Alarcon, 261 F.3d 416, 422 (5th Cir. 2001), cert. denied, 534 U.S.
1099 (2002). Alarcon reviewed the sufficiency of the evidence in support of a conviction for the
use of a minor in avoiding detection in violation of 21 U.S.C. § 861(a)(2), id., but we have
previously found Alarcon to be “instructive as to what conduct constitutes use of a minor”
under § 3B1.4, see Molina, 469 F.3d at 415 n.6.
       30
            Molina, 469 F.3d at 415 (citations and internal quotation marks omitted).

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the minor in the offense. Intentionally using a minor as a decoy is “use” of a
minor under § 3B1.4.31
       This is not to say that every defendant who brings a minor child along
while smuggling drugs or aliens is subject to having her sentence enhanced
under § 3B1.4. The district court should consider additional circumstantial
evidence to determine whether the defendant used the minor to avoid
detection.32 For example, in Molina, we held that the district court erred by
imposing the § 3B1.4 enhancement where there was no evidence that the
defendant in a drug-conspiracy case “believed that his seventeen-year-old
girlfriend’s presence in the vehicle during the drug run would assist in avoiding
detection” and there was a plausible alternate explanation for the girlfriend’s
presence in the vehicle.33 The § 3B1.4 enhancement also was unwarranted
where the defendant’s minor son was in the car with her when she was arrested
while attempting to smuggle drugs across the border but “the defendant (who
was living in the United States) planned the crime on the spur of the moment
while she was already in Mexico with her son for a family party.”34 But where
additional circumstantial evidence tends to confirm that the defendant brought
the minor along as a decoy and to avoid detection, the § 3B1.4 enhancement is
warranted.35


       31
         Accord United States v. Preciado, 506 F.3d 808, 810 (9th Cir. 2007) (per curiam), cert.
denied, 128 S. Ct. 2980 (2008).
       32
          See, e.g., United States v. Caldwell, 448 F.3d 287, 292 (5th Cir. 2006) (explaining that
“direct evidence [that] conclusively establishes” the factual basis for a sentence enhancement
is not required because “the sentencing court is permitted to make common-sense inferences
from the circumstantial evidence”).
       33
            Molina, 469 F.3d at 415.
       34
          Preciado, 506 F.3d at 811 (describing United States v. Jimenez, 300 F.3d 1166, 1168
(9th Cir. 2002)).
       35
         See, e.g., United States v. Castro-Hernandez, 258 F.3d 1057, 1060-61 (9th Cir. 2001)
(affirming application of the § 3B1.4 enhancement where at least four pieces of circumstantial
evidence supported the conclusion that the defendant had used his minor son for purposes of

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       In this case, the district court found that Mata had chosen to bring her
friend and the three minor children with her to give the appearance that the
group was traveling as a family unit and to reduce the likelihood of coming
under suspicion for being engaged in criminal conduct. More specifically, the
district court found that Mata chose to bring her children along because it would
help make the presence of the stroller in the trunk seem more plausible. The
court also found that Mata could have avoided bringing her children with her by
leaving them under the care of her friend, who, like Mata, lived in San Antonio.
A preponderance of the evidence supported each of these findings.                       Taken
together, these findings provide ample support for the district court’s conclusion
that Mata attempted to use the presence of the three minors in her car to assist
in avoiding detection of her offense. The district court did not err by enhancing
Mata’s sentence under § 3B1.4.


                                                III.
       Finally, Mata contends that the district court committed plain error by
impermissibly delegating to a probation officer its judicial authority to determine
whether Mata should be required to participate in a mental-health program as
a condition of her supervised release. After Mata filed her brief, a panel of this
Court held in United States v. Bishop that a district judge’s delegation of its
authority in this manner is not, in light of this Court’s precedent, plainly
erroneous.36 Bishop forecloses Mata’s position.


                                                IV.
       For the reasons discussed above, the judgment of the district court is
AFFIRMED.



avoiding detection of the fact that he was smuggling drugs), cert. denied, 534 U.S. 1167 (2002).
       36
            603 F.3d 279, 280-82 (5th Cir.), cert. filed, No. 10-5298 (July 6, 2010).

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