                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          OCT 15 1999
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                     No. 99-6066
                                                   (D.C. No. CR-98-140-M)
 DANIEL VILLARREAL,                                      (W.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Mr. Villarreal pled guilty to twenty-seven counts of transporting illegal

aliens within the United States for the purpose of commercial advantage and

private financial gain, see 8 U.S.C. §§ 1324(a)(1)(A)(ii), (B)(i). He was

sentenced to thirty months imprisonment on all counts, three years supervised

release, and $2,700 in special assessments. He appeals his sentence. Our


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we

affirm.

      The district court imposed a two-level sentence enhancement under USSG

§ 2L1.1(b)(5), applicable where “the offense involved intentionally or recklessly

creating a substantial risk of death or serious bodily injury to another person.”

Mr. Villarreal claims that the district court erred because his conduct did not rise

to the level required for an enhancement under the guideline.

      A district court’s findings of fact during sentencing are reviewed for clear

error. United States v. Fortier, 180 F.3d 1217, 1225 (10th Cir. 1999). Mr.

Villarreal was arrested for transporting thirty-one aliens across Oklahoma in an

eight passenger van. Application Note 6 to USSG §2L1.1 specifically says:

“Reckless conduct to which the adjustment from subsection (b)(5) applies

includes a wide variety of conduct (e.g., . . . carrying substantially more

passengers than the rated capacity of a motor vehicle or vessel . . .).” USSG

§ 2L1.1, comment. (n.6). The district court based its enhancement upon this

language, as well as the myriad unsanitary and unsafe conditions present in this

case. The record fully supports the district court’s finding; there is no error. See

United States v. Luna, No. 97-50511, 1998 WL 416501, *1 (9th Cir. June 15,

1998) (unpublished) (applying same enhancement in part for similar overcrowding

and noting “[p]erhaps our coign of vantage is not as good as that of a district


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judge, but we are not blind.”).

      AFFIRMED.

                                  Entered for the Court


                                  Paul J. Kelly, Jr.
                                  Circuit Judge




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