               UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                   _______________________

                        No. 99-50267
                   _______________________

                  UNITED STATES OF AMERICA,
                                       Plaintiff-Appellee,

                             v.
                  GUADALUPE IBARRA-SANDOVAL
                                      Defendant-Appellant.

       ______________________________________________
        Appeal from the United States District Court
              For the Western District of Texas
                       (P-98-CR-232-2)
       ______________________________________________
                         May 8, 2000
Before POLITZ and DAVIS, Circuit Judges, and RESTANI*,
Judge.

DAVIS, Circuit Judge:**

       Guadalupe Ibarra-Sandoval (“Ibarra”) pleaded guilty,
pursuant to a written plea agreement, to one count of

importation of marijuana.     Ibarra appeals her sentence,
contending that the district court erred by increasing


  *
       Judge of the International Court of Trade, sitting
by
designation.
  **
    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determined that this opinion should not be published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.
her offense level for using a minor to assist in the

commission of the offense.
       Ibarra was a passenger in a vehicle being driven by

her sister, Emma Torres-Sandoval (“Torres”), from Mexico

to the United States.                United States Customs Agents

stopped the Torres vehicle at the Port of Entry in
Presidio, Texas.        Torres’ three-month old daughter was
also    a   passenger    in    the    vehicle.    Upon   inspection,

Customs Agents discovered 65.4kg of marijuana in a hidden
compartment     inside        the    vehicle’s   gas   tank.   When

questioned, Ibarra informed the agents that she and her

sister were each paid $3,500 to transport the drugs to
Carlsbad, New Mexico.          Torres denied any knowledge of the
marijuana.

       In arriving at its sentence for Ibarra, the district
court accepted the probation officer’s recommendation in
the PSR that Ibarra’s offense level be increased two

levels pursuant to U.S.S.G. § 3B1.4 for use or attempted

use of a juvenile during the offense.            The district court
imposed a 30 month sentence of imprisonment.

       As the sole issue on appeal, Ibarra challenges this

two level increase.           Ibarra contends that the increase


                                      2
contemplated by § 3B1.4 does not apply simply because a

minor is present during an offense.
    Section 3B1.4, of the Federal Sentencing Guidelines

provides for an upward departure of two levels, “[i]f the

defendant used or attempted to use a person less than 18

years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense ....”
Section 3B1.4 further states, in Application Note 1, that

“‘Used    or    attempted   to        use’   includes     directing,
commanding,      encouraging,         intimidating,     counseling,

training,      procuring,       recruiting,     or      soliciting.”

(emphasis added).      The commentary to the guidelines is
binding on this Court.          Stinson v. United States, 508
U.S. 36, 42 (1993).

    The Sentencing Commission’s use of the qualifying
term ‘includes’, plainly signals that the enumerated
‘uses’ are not exclusive. Furthermore, Congress directed

the Sentencing Commission to promulgate guidelines to

provide   for    a   sentence    enhancement     for     adults   who
“involve[] a minor in the commission of the offense.”              28

U.S.C.A. § 994, Historical and Statutory Notes (Supp.

1996) (emphasis added).         When we read the guideline in


                                  3
light of this Congressional directive, the guideline is

broad   enough   to   encompass       circumstances   where   adult
criminals benefit from a minor’s passive participation in

the criminal scheme.

    Notwithstanding Ibarra’s arguments to the contrary,

we conclude that the district court was entitled to infer
that Ibarra and Torres transported the small child in the
vehicle as part of a strategy calculated to reduce the

chance that law enforcement agents would delay their trip
to make a careful inspection of the vehicle for drugs.

We conclude that this use of a child as a diversionary

tactic to transport drugs undetected across the border is
a ‘use’ of a minor under § 3B1.4.
    Accordingly, the judgment of the district court is

AFFIRMED.




                                  4
POLITZ, Circuit Judge, dissenting:


          I must respectfully dissent. As I read the record before us, it does not support

the challenged action of the trial court increasing Ibarra’s base offense computation
two levels under U.S.S.G. § 3B1.4 for the use or attempted use of a juvenile during

the offense charged.

          In 1994 Congress directed the Sentencing Commission to “promulgate

guidelines or amend existing guidelines to provide that a defendant... shall receive
an appropriate sentence enhancement if the defendant involved a minor in the
commission of the offense.”*** It is my understanding that Congress further
instructed that the guidelines shall apply:

          for any offense in relation to which the defendant has solicited,
          procured, recruited, counseled, encouraged, trained, directed,
          commanded, intimidated, or otherwise used or attempted to use any
          person less than 18 years of age with the intent that the minor would
          commit a Federal offense (emphasis added).****
Section 3B1.4 was enacted in response to that congressional directive.***** In the
case at bar, the mere presence in the vehicle of the three-month old baby, who is

not the defendant’s child, without more, should not, in my opinion, be construed

as the proscribed involvement of a child in the drug-trafficking offense.
           The United States contends that the wording of subsection (a)(1), “involved

   ***
      Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322
sec. 140008(a)(1), 108 Stat. 1796, 2033.
   ****
         Pub.L. 103-322 sec. 140008(a)(2), 108 Stat. 1796, 2033.
   *****
          U.S.S.G. Appendix C, amend. 527 (1997).
                                             5
a minor in the commission of the offense,” is broad enough to cover intentionally
using a minor as an innocent decoy.****** Accepting same for present purposes, the

record herein, however, is wholly devoid of any evidence indicating that the

defendants intentionally used the child to avoid detection of the marihuana or to
lessen suspicions by the border agents. The drugs were in a hidden compartment

in the vehicle’s gas tank. They were not located on or near the child’s person and

were not otherwise connected to the child in any way.******* The government

offered no evidence relevant to the infant at the sentencing hearing.******** Further,
the sentencing judge conceded that he did not know what Ibarra’s reasons were for
having the child present in the vehicle, simply observing that his resolution was
based on what often occurs in drug transportation cases.********* I am forced to the


   ******
         Id. (stating that § 3B1.4 was enacted in response to Congress’ directive but
in a slightly broader form).
   *******
         For example, if the drugs had been discovered under or within the baby’s
car seat, or wrapped inside the baby’s clothing, my conclusion would be different.
But that is not the situation herein. There is no suggestion that Ibarra in any way
attempted to use the child as a screen or to accelerate the inspection when stopped
by the agents. In addition, upon questioning Ibarra readily admitted her involvement.

   ********
         United States v. Hull, 160 F.3d 265 (5th Cir. 1998) cert. denied, Hull v.
United States, 119 S. Ct. 1091 (1999) (prosecutor must prove facts relevant to
sentencing by a preponderance of the evidence); United States v. Huskey, 137
F.3d 283 (5th Cir. 1998) (same).
   *********
           The Addendum to the PSI, written in response to Ibarra’s objections to the
two-level adjustment, stated that “[B]oth defendants chose to use an infant and
place it in ‘harm’s way.’ ” While this may be true, it is not, in my opinion, the
equivalent of using a child in the context of section 3B1.4. Whether other
provisions might have been appropriately applied if evidence had been adduced is
not before the court at this point.
                                          6
conclusion that the trial judge erred in assuming that Ibarra used her three-month
old niece to avoid detection of, or apprehension for, the crime. As such, the

imposition of a two-level increase under section 3B1.4 was improper. I would

vacate and remand for resentencing.




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