                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                                                             F I L E D
                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT                                  May 31, 2007

                                                                         Charles R. Fulbruge III
                                                                                 Clerk
                                  No. 05-41661


                           UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                          versus

                                RODRICK SMITH,

                                                             Defendant-Appellant.



             Appeal from the United States District Court
                  for the Southern District of Texas
                            (5:05-CR-1040)


Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

     Having pleaded guilty, Rodrick Smith challenges his 18-month

sentence for transporting an alien, in violation of 8 U.S.C. §§

1324(a)(1)(A)(ii), (a)(1)(B)(i).              At issue is whether the district

court    erred   in    imposing      an    enhancement      pursuant    to   advisory

Guidelines § 2L1.1(b)(5) (the enhancement) (applicable “[i]f the

offense involved intentionally or recklessly creating a substantial

risk of     death     or   serious    bodily       injury   to    another    person”).

AFFIRMED.



     *
       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this opinion should not be published and is not precedent except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.
                                  I.

     Smith, a commercial tractor-trailer driver, was stopped in

April 2005 by Border Patrol Agents at a highway border-patrol

checkpoint north of Laredo, Texas.      After a canine alerted to the

presence of concealed contraband or persons in the tractor’s cab,

the Agents discovered five undocumented aliens concealed in the

cab’s sleeper compartment. Three of them were concealed in storage

compartments   located   underneath    the   sleeper   compartment’s   bed

(compartments).

     At sentencing, the district court overruled Smith’s objection

to the enhancement, which had been recommended by the presentence

investigation report.    In doing so, the district court relied on

the Agents’ photographs of the three aliens concealed in the

compartments and found, inter alia: the aliens were “scrunched up”

in them, which were “clearly meant for nothing but storage”; “if

you have some sort of accident [that] ... causes [the top of the

compartments] to be difficult to lift up, [the aliens] are going to

be trapped”; and the aliens could not, while in the compartments,

see their surroundings to take precautions in case of an accident.

     The enhancement, coupled with an acceptance-of-responsibility

adjustment, resulted in an advisory Guidelines sentencing range of

18-24 months imprisonment.




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                                  II.

     Notwithstanding United States v. Booker, 543 U.S. 220 (2005)

(rendering    Guidelines   advisory),    a   district   court    must   still

properly determine the Guidelines range as part of the sentencing

process.     E.g., United States v. Simmons, 470 F.3d 1115, 1128-29

(5th Cir. 2006), petition for cert. filed (U.S. 16 Feb. 2007) (No.

06-9562).    In that regard, its interpretation and application of

the Guidelines are reviewed de novo; its factual findings, only for

clear error.    E.g., id. at 1129.   “A factual finding is not clearly

erroneous if it is plausible in [the] light of the record read as

a whole.”      United States v. Villanueva, 408 F.3d 193, 203 (5th

Cir.), cert. denied, 126 S. Ct. 268 (2005).

     Our court has recognized five non-exclusive factors to be

considered when applying the § 2L1.1(b)(5) enhancement, which

include:    an alien’s ability to exit the vehicle quickly; and the

danger to him in the event of an accident.         See United States v.

Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006).            As discussed

supra, the district court relied on photographs, the accuracy of

which Smith does not dispute, to make findings regarding these

factors. Smith does not show these findings are clearly erroneous.

Accordingly, the enhancement was not erroneous.           See id. at 890;

see also United States v. Rodriguez-Mesa, 443 F.3d 397, 403 (5th

Cir. 2006) (enhancement not erroneous where district court relied



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on   photographs   indicating   “it       would   have   been   difficult   to

extricate [the alien]”).

                                 III.

      For the foregoing reasons, the judgment is

                                                                AFFIRMED.




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