                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   November 28, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                                No. 05-20351
                              Summary Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

RAFAEL GARCIA-FLORES,

                                         Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 4:04-CR-350-ALL
                        --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

      Rafael Garcia-Flores (Garcia) pleaded guilty to count 5 of a

superseding indictment, charging him with illegal re-entry after

deportation, and was found guilty after a bench trial of counts 1,

3,   and   4,   of   the   superseding   indictment   charging   him    with

unlawfully transporting aliens for the purpose of financial gain

resulting in the death of an alien and aiding and abetting, of

being a felon in possession of a firearm, and of being an alien in

possession of a firearm. Garcia was sentenced within the guideline

imprisonment range to a 150-month term of imprisonment as to count

      *
       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this opinion should not be published and is not precedent except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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                                     -2-

1 and to concurrent 120-month terms of imprisonment as to counts 3,

4, and 5 and was ordered to serve concurrent three-year periods of

supervised release.

     At the bench trial, the Government introduced evidence showing

that Garcia was transporting three illegal aliens from a house in

Houston to a grocery-store parking lot.         One of the aliens was Jimy

Lopez-Mejia Garcia.         His brother, Jose Santos Lopez-Mejia, was

going to meet Garcia in the grocery-store parking lot and pay for

Jimy’s release.    During the transaction, Jose and Garcia got into

a knife fight.    Garcia drove away, with Jose Lopez hanging on the

side of Garcia’s truck.       Garcia pulled a 9mm pistol and the other

men in the truck struggled with Garcia.             The pistol discharged

once.   The truck struck a telephone pole and two other vehicles.

Jose Lopez was thrown to the pavement and was killed.

     In general, 8 U.S.C. § 1324(a)(1)(A) makes it a crime to

transport    illegal    aliens.          §     1324(a)(1)(A).      Section

1324(a)(1)(B)(iii) and (iv) establishes increased maximum penalties

if, during the commission of a violation of subsection (a)(1)(A),

the defendant causes any person to suffer serious bodily injury or

death   or   placed    in     jeopardy   the    life   of   “any   person.”

§ 1324(a)(1)(B)(iii) & (iv); United States v. Williams, 449 F.3d

635, 644–45 (5th Cir. 2006).      Garcia contends for the first time on

appeal and without citation that the term “any person” refers only

to undocumented aliens alleged to have been transported.               Our

review is for plain error.       See United States v. Alfaro-Hernandez,
                             No. 05-20351
                                  -3-

453 F.3d 280, 281 (5th Cir. 2006).       Garcia has not identified and

we have not found any case in which a court has interpreted the

statute in the manner in which Garcia contends it should be

interpreted.     Accordingly, the district court could not have

committed a clear or obvious error in giving the term “any person”

its ordinary and natural meaning.       See United States v. Hall, 110

F.3d 1155, 1161 (5th Cir. 1997).

     Garcia    contends   also   that   the   district    court   erred   by

overruling his objection to an eight-level increase in his offense

level under U.S.S.G. § 2L1.1(b)(6) because of Lopez’s death.

Garcia contends that the enhancement does not apply because Lopez

was not one of the smuggled aliens.      Our review is for plain error.

See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).

Under § 2L1.1(b)(6)(4), a defendant’s offense level is increased by

eight levels “if any person died.”            United States v. Garcia-

Guerrero, 313 F.3d 892, 898 (5th Cir. 2002).                In overruling

Garcia’s objection, the district court found that Garcia’s relevant

conduct proximately caused Jose’s death.            The district court

explained, “Smuggling aliens illegally with a loaded firearm could

reasonably lead the smuggler to foresee the result in this case;

that is, death and serious bodily injury to third parties who

negotiate for the release of the illegally smuggled aliens.”              The

district court’s finding and its enhancement of the offense level

under § 2L1.1(b)(6) was not plainly erroneous.           See Villegas, 404

F.3d at 358.
                                 No. 05-20351
                                      -4-

     Prior to the bench trial, the parties reached an agreement

that Garcia would plead guilty to transporting an illegal alien for

financial gain, a violation of § 1324(a)(1)(A)(ii) and (B)(ii)

(count 1), and § 1326 (count 5), but would proceed to a bench trial

as to the sentencing enhancements of count 1 related to bodily

injury and death ((B)(iii) & (iv)) and as to the firearms counts

(counts 3 and 4), in exchange for which the Government would agree

to dismissal of count 2 (kidnaping).

     Garcia contends that the district court erred in finding him

guilty of § 1324(a)(1)(B)(iii) and (iv) because that finding “was

not supported by the evidence and was contrary to the admonishments

of the offense elements to which [he] entered his plea of guilty.”

We review the district court’s acceptance of Garcia’s partial

guilty plea to count 1 for plain error.         See United States v. Vonn,

535 U.S. 55, 59 (2002).         We review the sufficiency of the evidence

as to the bodily-injury-and-death enhancements in the light most

favorable to the Government to determine “whether the finding of

guilt   is    supported    by    substantial    evidence,   i.e.,   evidence

sufficient to justify the trial judge, as the trier of fact, in

concluding beyond a reasonable doubt that the defendant is guilty.”

United States v. Turner, 319 F.3d 716, 720–21 (5th Cir. 2003)

(quotation marks omitted).

     Garcia     admitted    at    the   rearraignment   that   he   violated

§ 1324(a)(1)(A) by transporting illegal aliens for financial gain.

Under § 1324(a)(1)(B)(iii) and (iv), the maximum penalty for such
                             No. 05-20351
                                  -5-

violation is increased (to 20 years and death or life imprisonment,

respectively) if, “during and in relation to” the violation, the

defendant “causes serious bodily injury . . . to, or places in

jeopardy the life of, any person” or if such violation results “in

the death of any person.”        § 1324(a)(1)(B)(iii) & (iv); see

Williams, 449 F.3d at 644–45.    The evidence, viewed in the light

most favorable to the Government, showed that, while Garcia was

transporting illegal aliens in violation of § 1324(a)(1)(A)(ii),

Jose Lopez became involved in an argument with Garcia regarding one

of the aliens and that Lopez was killed when he was thrown to the

pavement as Garcia attempted to leave the scene in his vehicle.

The district court’s finding of guilt is supported by substantial

evidence.    See Turner, 319 F.3d at 720–21.     Garcia’s substantial

rights were not affected by any error in accepting Garcia’s partial

guilty plea as to count 1.     See United States v. Olano, 507 U.S.

725, 734–35 (1993).

     Garcia also contends that his guilty plea was involuntary

because the district court failed to comply with FED. R. CRIM. P. 11.

We review this issue for plain error.       See Vonn, 535 U.S. at 59.

As to count 1, Garcia contends specifically that the district court

erred in admonishing him about the maximum punishment. The maximum

term of imprisonment for transporting illegal aliens for financial

gain or for engaging in a conspiracy to transport illegal aliens is

ten years.    See § 1324(a)(1)(A)(ii) & (v)(I) and (B)(i).     If the

defendant merely transports illegal aliens or aids and abets the
                              No. 05-20351
                                   -6-

offense of transporting illegal aliens, the maximum penalty is five

years.     See § 1324(a)(1)(A)(ii) & (v)(II) and (B)(ii).             The

district court admonished Garcia that he faced a maximum sentence

of 10 years for count 1.     Garcia argues that the maximum sentence

was five years because the evidence introduced at the bench trial

showed that he was guilty of aiding and abetting only and so should

have been convicted and sentenced pursuant to § 1324(a)(1)(B)(ii).

Garcia admitted at the rearraignment that he had transported

illegal aliens for financial gain. Therefore, the maximum sentence

to which he was exposed as a consequence of his guilty plea was 10

years, under § 1324(a)(1)(A)(ii) and (B)(i).        There was no error,

plain or otherwise.

     The district court admonished Garcia that he faced a maximum

sentence   of   20   years   for   count   5   (illegal   reentry   after

deportation). Under § 1326(b)(2), an alien who reenters the United

States following deportation, in violation of § 1326(a), who was

convicted of an aggravated felony prior to deportation, faces a

maximum term of imprisonment of 20 years.         Garcia admitted that,

prior to deportation, he was convicted of an aggravated felony,

that is, a drug trafficking offense.           Garcia contends that the

prior felony involved marijuana possession for which he served a

six-month sentence and that the district court erred in admonishing

him that he faced a statutory maximum sentence of 20 years.

Because he received only a six-month sentence for the marijuana-

possession conviction, Garcia argues, he was not subject to the 16-
                                    No. 05-20351
                                         -7-

level enhancement under U.S.S.G. § 2L1.2(1)(A)(I) and the district

court’s     admonition   to     the    contrary      and   failure    to    define

“aggravated felony” made his guilty plea involuntary.                       Garcia

contends also that the error led to an incorrect application of the

Guidelines.    These arguments are without merit.

     Under Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Court upheld the treatment of prior convictions as

sentencing factors.      Despite repeated attack, this court has held

that Almendarez-Torres remains binding, despite the holding in

Apprendi v. New Jersey, 530 U.S. 466 (2000).                  Accordingly, any

failure on the part of the district court to admonish Garcia

adequately regarding the impact of § 1326(b)(2) on his sentencing

range could not have affected the voluntariness of Garcia’s guilty

plea to a violation of § 1326(a) and was not plainly erroneous.

     Garcia    admitted,      in    response    to   questioning     by    his   own

attorney,    that   he   was       deported    following    conviction     for    an

aggravated felony.       Instead of a 16-level increase in offense

level, Garcia received a 12-level increase in offense level because

of the prior felony.           That increase impacted group II of the

guideline calculation (count 5) but did not impact group I (counts

1, 3, and 4).       Garcia did not object to the 12-level increase.

Accordingly, our review is for plain error.                See United States v.

Vargas-Garcia, 434 F.3d 345, 347 (5th Cir. 2005), cert. denied, 126

S. Ct. 1894 (2006).        Because the offense level for group I was

higher, Garcia was sentenced pursuant to group I and the 12-level
                           No. 05-20351
                                -8-

enhancement had no effect on the total offense level and Garcia’s

substantial rights were not affected.

     Garcia contends that the district court erred in overruling

his objection to the lack of an adjustment in offense level for

acceptance of responsibility.    The reduction for acceptance of

responsibility “‘is not intended to apply to a defendant who puts

the government to its burden of proof at trial by denying the

essential factual elements of guilt, is convicted, and only then

admits guilt and expresses remorse.’”     United States v. Sanchez-

Ruedas, 452 F.3d 409, 414–15 (5th Cir. 2006) (quoting U.S.S.G.

§ 3E1.1, comment. (n.2)), cert. denied, 127 S. Ct. 315 (2006).   The

judgment is

     AFFIRMED.
