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

                                                FILED
                                                                 October 22, 2009
                                No. 09-10077
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

JORGE DE LA LUZ-ANTONIO,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 1:08-CR-49-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Jorge De La Luz-Antonio (De La Luz) pleaded guilty to transporting illegal
aliens.   The presentence report (PSR) set De La Luz’s offense level at 18
pursuant to U.S.S.G. § 2L1.1(b)(6) based on a finding that “the offense involved
intentionally or recklessly creating a substantial risk of death or serious bodily
injury to another person.” De La Luz appeals the enhancement, asserting that
the adjustment should not have been applied because the aliens had access to



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 09-10077

oxygen, were not exposed to extreme temperatures, and could exit the vehicle
quickly if necessary. See United States v. Zuniga-Amezquita, 468 F.3d 886, 889
(5th Cir. 2006)(setting forth factors to be considered in applying this
adjustment).
      Because the facts related to this adjustment are not in dispute, we review
de novo the legal question of the applicability of the adjustment. United States
v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005). According to the PSR and the
addendum, De La Luz was transporting 11 illegal aliens in a minivan rated for
seven passengers. See United States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir.
2008)(indicating in dicta that a vehicle carrying four people more than its rating
would “[p]robably” be considered “substantially more” than the rated capacity
of the vehicle). Additionally, the rear seats of the vehicle had been removed, and
the deputy sheriff who had stopped the vehicle identified five unsecured cinder
blocks in the rear of the minivan, on which some of the aliens were sitting. The
blocks could overturn or become projectiles in the event of an accident, which
could cause injuries to an individual sitting on a cinder block or to others in the
vehicle. See Zuniga-Amezquita, 468 F.3d at 890. Therefore, the aliens faced a
greater “risk of injury . . . than that faced by an ordinary passenger, without a
seatbelt.” Id. In light of these aggravating factors, the district court’s imposition
of the enhancement is AFFIRMED.




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