     Case: 10-41353     Document: 00511625431         Page: 1     Date Filed: 10/06/2011




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

                                                                            FILED
                                                                          October 6, 2011

                                       No. 10-41353                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MARCOS ANTONIO BAILON,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:10-CR-971-1


Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Marcos Antonio Bailon, who pleaded guilty to one count of transporting an
illegal alien, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II), and
1324(a)(1)(B)(i), challenges his sentence. Primarily at issue is whether the
district court erred in applying an enhancement for “intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another person”,
Sentencing Guideline § 2L1.1(b)(6), based on Bailon’s giving a sleep-aid drug,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41353

which was not consumed, to the minor alien he was transporting.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.
                                         I.
      The facts are undisputed. On 3 August 2010, Border Patrol Agents at the
Sarita, Texas, checkpoint inspected an automobile driven by Bailon. With
Bailon were two adults, including Lucy Ybarra-Contreras, and a seven-year-old
girl. At secondary inspection, the minor told Agents: she was a citizen of El
Salvador present in the United States illegally; and Ybarra-Contreras had given
her a blue tablet to help her fall asleep before they reached the checkpoint. The
Agents recovered the tablet from the minor and identified it as a TopCare
Nighttime Sleep Aid 25-milligram mini-caplet.
      Regarding the drug, the pre-sentence investigation report (PSR)
recommended: “[T]here is no evidence [Bailon and Ybarra-Contreras] placed the
minor in imminent danger [of] serious bodily injury”. Both parties filed notice
of no objections to the PSR.
      On 10 December 2010, the district court notified the parties it would
consider an upward departure from the advisory Guidelines or, alternatively, a
six-level sentence enhancement for endangerment. The base offense level for
transporting an illegal alien is 12. U.S.S.G. § 2L1.1. Under specific offense
characteristic (b)(6),
             [i]f the offense involved intentionally or recklessly
             creating a substantial risk of death or serious bodily
             injury to another person, increase by 2 levels, but if the
             resulting offense level is less than level 18, increase to
             level 18.

U.S.S.G. § 2L1.1(b)(6). (The PSR also recommended a two-level enhancement
under Guideline § 2L1.1(b)(4) for transporting a minor unaccompanied by a
parent or grandparent.)

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         At sentencing on 20 December, the Government offered, and the court
admitted without objection, the TopCare Nighttime Sleep Aid label, which
warns: “Do not use in children under 12 years of age”. After hearing argument
from the parties concerning the danger the drug posed to the minor, the court
ruled:
              I’m going to amend the [PSR] orally here and impose
              the six-point endangerment enhancement. I find that
              giving any drug, be it over the counter, be it
              prescription, to a child that’s not your child so that
              you’re purposely trying to put them to sleep so they’ll
              sleep through the checkpoint, that you’re endangering
              that child because you don’t know how that child is
              going to react to that drug. And especially giving him
              one or her one that the instructions say do not use in
              children . . . .

(Emphasis added.) The court then “overrul[ed] the plea agreement to the extent
it calls for a waiver of appeal” to “allow [Bailon] to appeal the ruling I just
made”.
         Before the enhancement, the advisory Guidelines sentencing range for
Bailon’s offense and criminal history was 10- to 16-months’ imprisonment; after
the enhancement, it was 18 to 24 months. Bailon was sentenced, inter alia, to
18-months’ imprisonment.
                                        II.
         Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the advisory Guidelines
sentencing range for use in deciding the sentence to impose. Gall v. United
States, 128 S. Ct. 586, 596 (2007).      In that respect, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,




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United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
        Claimed procedural errors are addressed before reaching whether Bailon’s
conduct justifies the endangerment enhancement. Because it does not, his
unreasonable-sentence claim need not be reached.
                                         A.
                                         1.
        Bailon first contends the district court “abused its discretion” by relying
on evidence outside the record. He identifies as evidence “not in the record” the
court’s inference of a danger not explicitly warned of on the drug’s label. Bailon
asserts: “The label is ambiguous as to what may happen if the over-the-counter
medicine is given to children under the age of 12. . . . [T]here was no evidence
that the drug was dangerous when given to children younger than 12 years of
age”.
        We would read these statements as challenging the conclusion that
Bailon’s conduct constitutes endangerment under Guideline § 2L1.1(b)(6) but for
Bailon’s insistence that the claimed error was merely procedural, e.g.:
              At sentencing, the district court must rule on the
              evidence presented. If the court decides on its own to
              inject evidence, or help the government meet the
              burden of proof, in spite of the government’s lack of
              evidence, this negates the evidentiary standard and the
              purpose of the hearing.

        As such, Bailon fails to explain how drawing such an inference from
admitted evidence constitutes relying on evidence outside the record, nor does
he direct us to any supporting authority. This inadequate briefing waives the
issue. FED. R. APP. P. 28(a)(9)(A) (brief must contain “appellant’s contentions
and the reasons for them, with citations to the authorities . . . on which the




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                                  No. 10-41353

appellant relies”); United States v. Stalnaker, 571 F.3d 428, 439-40 (5th Cir.
2009) (waiver for failure to explain adequately or cite authority).
                                         2.
      Similarly, Bailon contends the court “abused its discretion” by relying on
evidence the Government “misrepresented”: “The government noted the labeling
on the package stated ‘do not give to children 12 years of age and under’. . . . The
package warning actually reads, ‘Do not use in children under 12 years of age’”.
(Emphasis added.)     Because Bailon did not preserve the claimed error at
sentencing, the standard of review is plain error. FED. R. CRIM. P. 52(b); United
States v. Navejar, 963 F.2d 732, 734 (5th Cir. 1992) (“The contemporaneous
objection rule applies equally to sentencing hearings as to trials.”).
      “The first limitation on appellate authority under Rule 52(b) is that there
indeed be an ‘error.’” United States v. Olano, 507 U.S. 725, 732 (1993). Here,
there is none. It is irrelevant in this instance whether the drug not be given to
children 12 and under or to children under 12; the minor was seven. Moreover,
it strains reason to contend the Government’s misstatement had any bearing on
the court’s endangerment conclusion. This is especially so as the court twice
read the label’s warning aloud, correctly, after the Government offered it in
evidence, including once as it announced its ruling: “[A]nd I’m reading the
instructions here, warnings. The first warning is do not use in children under 12
years of age.” (Emphasis added.) The court obviously did not rely on the
Government’s misstatement of the label’s warning.
                                         3.
      Bailon next contends the district court “abused its discretion” by “never
address[ing] the discrepancy in the government’s position on the imminent
danger issue”. He maintains it was “disingenuous” of the Government to file no
objections to the PSR, which included a recommendation of no dangerousness or
threat of serious bodily injury, and then to offer evidence of endangerment at

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                                   No. 10-41353

sentencing: “The government’s position must be consistent and clear. . . . Such
actions [as these] lead to erosion of the government’s credibility . . . .”
      Bailon offers no further explanation on this point and cites no authority
suggesting a court may not allow the Government to change its position on an
enhancement after notifying the parties it will consider applying it. Again, this
inadequate briefing waives the issue. FED. R. APP. P. 28(a)(9)(A).
                                         4.
      Bailon maintains the district court violated his right to due process by
introducing sua sponte the endangerment enhancement. According to Bailon,
this was not “proper procedure”: “[I]f the court wishes to entertain a . . .
sentence beyond the normal range, the upward departure [sic] should be birthed
by the government”.
      Bailon explains no further and directs us to authority only for the
proposition that the Government bears the burden of proof for establishing the
offense level. This does not address whether a court may raise sua sponte a
possible enhancement. This issue is also waived. FED. R. APP. P. 28(a)(9)(A).
                                         5.
      Last, Bailon contends the court impermissibly “modif[ied] the evidence
presented . . . to fit the evidentiary standard” when it “amended” the PSR,
thereby violating his right to due process. Review is only for plain error. E.g.,
United States v. Breland, 647 F.3d 284, 290 (5th Cir. 2011).
      There was no error. The court did not assist the Government in meeting
its evidentiary burden. That Bailon gave the minor the drug was not in dispute.
Rather, the court was adopting the PSR’s recommendations, except for the
recommendation that the minor was not endangered, on which point the court
concluded otherwise.




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                                         B.
      As noted, the primary issue on appeal–whether Bailon’s conduct
constitutes endangerment under Guideline § 2L1.1(b)(6)–is not raised in Bailon’s
opening brief. Rather, the Government raises the issue in its response brief, and
Bailon addresses it in his reply.
      Generally, our court will not consider an issue not raised in an opening
brief. E.g., United States v. Brown, 305 F.3d 304, 307 n.4 (5th Cir. 2002).
Nevertheless, “[w]e ordinarily have the discretion to decide legal issues that are
not timely raised”. United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.
1992) (en banc). One instance in which we may exercise this discretion is “when
a new issue is raised in the appellee’s brief and the appellant responds in his
reply brief”. United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009)
(explaining there is no unfair surprise to appellee in such a situation). Because
the preceding issues raised by Bailon sufficiently force this primary issue to the
surface and it is a question of law, we will address it.
                                         1.
      Bailon opposed the endangerment enhancement at sentencing, citing the
pertinent Guideline and arguing its inapplicability. Accordingly, the issue was
preserved in district court.        Along this line, the court recognized the
appealability of the issue by, as noted, partially overruling Bailon’s plea-
agreement waiver expressly to allow for appeal from the ruling. FED. R. CRIM.
P. 51(b) (“[a] party may preserve a claim of error by informing the court–when
the court ruling or order is made or sought–of the action the party wishes the
court to take”).
                                         2.
      As noted, when an issue is preserved, a district court’s interpretation of
the Guidelines is reviewed de novo; its factual determinations, for clear error.
E.g., United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005). “We

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review for clear error the factual findings a district court makes in support of its
decision to apply the [Guideline] § 2L1.1(b)(6) enhancement.” United States v.
Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (emphasis added).
      Evidentiary issues arising under Guideline § 2L1.1(b)(6) often become
questions of law, i.e., whether the evidence suffices to show “a substantial risk
of death or serious bodily injury”. The effect has been that, under this provision,
our court has applied clear-error deference only to the question whether the
evidence is sufficient to support a finding of fact distinct from, but related to, the
question whether the defendant’s conduct “creat[ed] a substantial risk of death
or serious bodily injury”. See, e.g., United States v. Garza, 587 F.3d 304, 310-11
(5th Cir. 2009) (no clear error in finding aliens’ positions in vehicle impeded
ability to exit and increased injury risk; reviewing de novo conclusion that these
facts created substantial risk of serious bodily injury); United States v. Mata, 624
F.3d 170, 173-75 (5th Cir. 2010) (no clear error in finding stroller positioned over
concealed alien impeded alien’s ability to exit vehicle and would have
exacerbated harm in event of accident; reviewing de novo conclusion that these
facts created substantial risk); Rodriguez, 630 F.3d at 381-83 (no clear error in
finding aliens were “stacked” in vehicle’s cargo area but concluding, after de novo
review, that these facts did not create substantial risk; concluding also court
committed clear error in finding U-turn was reckless).
      The facts of Bailon’s offense are undisputed; the question whether the
conduct constitutes endangerment under Guideline § 2L1.1(b)(6) is a “strictly
legal one”. Solis-Garcia, 420 F.3d at 514. See also United States v. Rodriguez-
Mesa, 443 F.3d 397, 401 n.9 (5th Cir. 2006) (“[b]ecause there was no factual
dispute regarding the facts necessary to support the enhancement in Solis-
Garcia, the only question before the court was the application question”).
Therefore, the standard of review is de novo. See United States v. Torres, 601
F.3d 303, 305 (5th Cir. 2010) (“Torres does not dispute the facts found by the

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district court, but contends [the court erred in] its application of factual findings
to the reckless endangerment enhancement. Thus, our review of the application
of the guidelines is de novo.”).
                                         3.
      As noted, under Guideline § 2L1.1, the base offense level for transporting
an illegal alien is 12. As also noted, under specific offense characteristic (b)(6),
             [i]f the offense involved intentionally or recklessly
             creating a substantial risk of death or serious bodily
             injury to another person, increase by 2 levels, but if the
             resulting offense level is less than level 18, increase to
             level 18.

U.S.S.G. § 2L1.1(b)(6). Thus, the question is whether giving a seven-year-old a
sleep aid (even if not consumed) that instructs is not to be used in children under
12 “creat[es] a substantial risk of death or serious bodily injury”. (Bailon does
not dispute the adopted finding in the PSR that he and Ybarra-Contreras gave
the minor the drug.)
      The commentary to Guideline § 2L1.1(b)(6) instructs that the provision
encompasses “a wide variety of conduct”, listing as examples: “transporting
persons in the trunk or engine compartment of a motor vehicle”; “carrying
substantially more passengers than the rated capacity of a motor vehicle”; and
“harboring persons in a crowded, dangerous, or inhumane condition”. U.S.S.G.
§ 2L1.1 cmt. n.5.
      Likewise, our court’s decisions construing Guideline § 2L1.1(b)(6)
(designated § 2L1.1(b)(5) in decisions from 2006 and before) revolve, and have
evolved, around concealing people in vehicles. See Solis-Garcia, 420 F.3d 511
(transporting four aliens lying side-by-side in cargo area of minivan); Rodriguez-
Mesa, 443 F.3d 397 (transporting alien in concealed compartment between
minivan’s front passenger seats); United States v. Zuniga-Amezquita, 468 F.3d
886 (5th Cir. 2006) (transporting five aliens lying side-by-side behind boxes and

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                                  No. 10-41353

luggage in van’s cargo area); Garza, 587 F.3d 304 (transporting two aliens
“wedged between” front seat and back seat on floor of pick-up truck, with child
on top of back seat); Torres, 601 F.3d 303 (transporting minor in space under
sleeping-area of tractor-trailer); Mata, 624 F.3d 170 (transporting alien under
blankets, luggage, and a stroller in sport-utility vehicle’s cargo area); Rodriguez,
630 F.3d 377 (transporting three aliens “stacked” in cargo area of vehicle).
      In other words, for our court, providing a drug to a minor, even if not
consumed, to induce sleep through the checkpoint is a new question. Nor has
our research found a case from another circuit on this point.
      In Zuniga-Amezquita, 468 F.3d at 889, our court articulated five factors
to consider when applying Guideline § 2L1.1(b)(6): “the availability of oxygen,
exposure to temperature 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”. The Government contends three of these –inability
to communicate with the driver of the vehicle, inability to exit the vehicle
quickly, and increased danger in the event of an accident–are implicated by the
facts at hand and militate in favor of an endangerment conclusion.
      The Government points to the federal statutory mandate that “adequate
warnings” be placed on drugs when use “by children . . . may be dangerous to
health”. 21 U.S.C. § 352(f)(2). The Government also cites to regulations
promulgated by the Food and Drug Administration and the Consumer Product
Safety Commission requiring child-resistant closures on drug products, including
sleep aids, containing more than 66 milligrams of diphenhydramine–the active
ingredient in the TopCare Nighttime Sleep Aid at issue–and to statements by
these agencies describing the ill effects of overdosing on such drugs. (This
authority was not cited to the district court.)
      We hold: by giving a seven-year-old the 25-milligram over-the-counter
sleep aid at hand, Bailon did not create a substantial risk of death or serious

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                                  No. 10-41353

bodily injury to the minor, and thus an enhancement under Guideline
§2L1.1(b)(6) is not justified. The Guidelines define a “serious bodily injury” as
an “injury involving extreme physical pain or the protracted impairment of a
bodily member, organ, or mental faculty; or requiring medical intervention such
as surgery, hospitalization, or physical rehabilitation”. U.S.S.G. § 1B1.1 cmt.
n.1(L) (emphasis added). The language of Guideline § 2L1.1(b)(6) requires that
the magnitude of the potential harm be at least this severe and that the
likelihood of the harm be substantial. The Guideline is better read not to subject
Bailon’s conduct, irresponsible though it was, to this enhancement.
      Our holding is narrow, of course, confined to the facts at hand. Obviously,
giving a person a drug would, in some circumstances, create a substantial risk
of death or serious bodily injury. But, in holding Bailon’s conduct did not
constitute endangerment, we necessarily reject the district court’s conclusion
that giving any drug to a minor who is not your child and against the label’s
instructions constitutes the requisite endangerment. We reiterate that rulings
that broad categories of conduct constitute endangerment are unlikely to
comport with Guideline § 2L1.1(b)(6). “[W]e have implied that we will not create
such per se rules”. United States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir.
2008). “[A]pplication of [Guideline § 2L1.1(b)(6)] requires a fact-specific inquiry
. . . . [A] single, bright-line test is not necessarily appropriate for a guideline
that must be applied to a wide variety of factual settings”. Zuniga-Amezquita,
468 F.3d at 889. “Defining the contours of this enhancement is dependent upon
carefully applying the words of the guideline in a case-specific analysis.” Solis-
Garcia, 420 F.3d at 516. Finally, we note the Zuniga factors, although helpful
when assessing the risk of harm to a person concealed in an automobile, are less
so when assessing the risk of harm to a person who has been given a drug but
who remains in plain sight of others in the automobile.



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                                     III.
      For the foregoing reasons, Bailon’s conviction is AFFIRMED; his sentence
is VACATED; and this matter is REMANDED for resentencing consistent with
this opinion.




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