     Case: 19-40346      Document: 00515325344         Page: 1    Date Filed: 02/28/2020




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

                                                                          FILED
                                                                     February 28, 2020
                                    No. 19-40346
                                                                       Lyle W. Cayce
                                  Summary Calendar                          Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JEFF VINCENT GRAINGER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:18-CR-549-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Jeff Vincent Grainger appeals the 42-month sentence imposed following
his conviction of transporting an undocumented alien, who, the record evidence
showed, Grainger transported in a space below the toolbox located in the
uncovered bed of his pickup truck. He contends that the district court erred by
imposing a U.S.S.G. § 2L1.1(b)(6) enhancement because the offense involved




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40346

the intentional or reckless creation of a substantial risk of death or serious
bodily injury to the alien being transported.
       We review the district court’s application of § 2L1.1(b)(6) de novo. United
States v. Maldonado-Ochoa, 844 F.3d 534, 536 (5th Cir. 2016).                  The
Government has the burden of proving, by a preponderance of the evidence,
the facts necessary to support the enhancement, and this court applies a
deferential clear error standard of review to the district court’s fact findings
supporting the enhancement. United States v. Rodriguez, 630 F.3d 377, 380
(5th Cir. 2011).
       In determining whether a § 2L1.1(b)(6) adjustment is warranted, we do
not apply bright-line rules but “must engage in a fact-specific inquiry.”
Maldonado-Ochoa, 844 F.3d at 537 (internal quotation marks and citation
omitted). We have articulated a five-factor test based on the following non-
exhaustive list of factors: (1) the availability of oxygen; (2) the exposure to
temperature extremes; (3) the aliens’ ability to communicate with the driver of
the vehicle; (4) the aliens’ ability to exit the vehicle quickly; and (5) the danger
to the aliens if an accident occurs. United States v. Zuniga-Amezquita, 468
F.3d 886, 889 & n.4 (5th Cir. 2006).
       We have repeatedly held that the transportation of unrestrained aliens
in pickup-truck beds without camper shells is “inherently dangerous” and
warrants a § 2L1.1(b)(6) enhancement. Maldonado-Ochoa, 844 F.3d at 537.
Although Grainger contends that his case is distinguishable because the alien
travelled in the bed only briefly and for a short distance, this court has
specifically rejected such arguments. See Maldonado-Ochoa 844 F.3d at 537-
38.
       In addition, Grainger fails to show that the district court clearly erred by
adopting the factual findings contained in the presentence report, which stated



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                                No. 19-40346

that the temperature was 97 degrees Fahrenheit on the day at issue, and by
relying upon photographic evidence introduced by the Government showing
that the temperature in Grainger’s truck bed registered approximately 102
degrees Fahrenheit. See Rodriguez, 630 F.3d at 380. The district court did not
err by imposing the § 2L1.1(b)(6) enhancement based on the danger posed to
the alien in the event of an accident and the extreme temperatures to which
she was exposed.     See Maldonado-Ochoa, 844 F.3d at 536-37; Zuniga-
Amezquita, 468 F.3d at 889.
     AFFIRMED.




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