     Case: 14-40860      Document: 00513065509         Page: 1    Date Filed: 06/03/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40860
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 3, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MANUEL RODRIGUEZ, III,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:13-CR-1279-2


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Manuel Rodriguez, III, appeals the sentence imposed following his guilty
plea convictions for conspiracy to import five or more kilograms of cocaine and
importation of five kilograms or more of cocaine. He was sentenced to an 87-
month term of imprisonment and a four-year term of supervised release. On
appeal, Rodriguez argues that the district court erred by applying a two-level


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40860

sentence enhancement pursuant to U.S.S.G. § 3B1.4 based on a finding that
he used his two minor children to assist in avoiding detection of the offense.
      Section 3B1.4 provides for a two-level sentence enhancement, “[i]f the
defendant 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 . . . .” § 3B1.4. We review the determination that a defendant used or
attempted to use a minor to assist in avoiding detection de novo and findings
of fact supporting that determination for clear error. United States v. Mata,
624 F.3d 170, 175 (5th Cir. 2010).
      A § 3B1.4 enhancement applies “when a defendant ‘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 . . . .’” United States v.
Powell, 732 F.3d 361, 380 (5th Cir. 2013) (quoting Mata, 624 F.3d at 175). “To
trigger the enhancement, a defendant must take some affirmative action to
involve the minor in the offense because the mere presence of a minor at the
scene of the crime is insufficient.” Powell, 732 F.3d at 380 (internal quotation
marks and citation omitted).         “When a defendant’s crime is previously
planned --when, for example, she leaves the house knowing she is on her way
to smuggle drugs . . . the act of bringing the child along instead of leaving the
child behind is an affirmative act” involving the minor. Mata, 624 F.3d at 176.
      In this case, circumstantial evidence beyond mere presence supports a
finding that Rodriguez used his two minor children to avoid detection of the
offense. See id. First, this was not a spur-of-the-moment crime. See id. at 177
& n.33. Rather, Rodriguez knew he would be transporting drugs across the
border before he committed the crime. A few days before the offense, Rodriguez
and his common law wife left their Mazda CX-7 in Nuevo Laredo, Mexico. A
day after being notified that their car was ready, the couple and their two



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                                 No. 14-40860

minor children returned to Nuevo Laredo to retrieve their car laden with
drugs. Second, Rodriguez had available alternative child care at the time of
the offense. Rodriguez admitted that a friend in San Antonio cared for his two
older children, ages five and six, during his drug smuggling trip. As in Mata,
the district court found that Rodriguez could have left his two younger children
with the person who was caring for his two older children. Id. at 177.
      Given the foregoing, the district court did not err in applying the § 3B1.4
enhancement. Accordingly, the judgment of the district court is AFFIRMED.




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