                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                          F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                              April 24, 2007

                                                                       Charles R. Fulbruge III
                                                                               Clerk
                                No. 05-40847
                              Summary Calendar


                        UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                   versus

                              EDUARDO GARCIA,

                                                           Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 2:05-CR-40-ALL
                         --------------------

Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

     Eduardo   Garcia    appeals      from   his    conviction     of     illegally

transporting an alien inside the United States.                 He contends that

the district    court    erred   by    adjusting     his    offense      level    for

reckless endangerment, by adjusting his offense level for the

number of aliens involved in the offense, by denying him an

adjustment for acceptance of responsibility, and by attributing

three    criminal   history   points    to    him    for    a   1995    California

conviction.



     *
      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this opinion should not be published and is not precedent except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.
     Garcia’s contentions regarding the adjustment for reckless

endangerment, the adjustment for the number of aliens, and the

attribution of criminal history points are raised for the first

time on appeal. Those contentions therefore are reviewed under the

plain error standard.       See United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,

507 U.S. 725, 731-37 (1993)).

     Garcia   has    failed     to   demonstrate    error   regarding   the

adjustment for reckless endangerment.              The presentence report

indicated very cold conditions in a locked trailer unit of a

tractor-trailer.     See United States v. Zuniga-Amezquita, 468 F.3d

886, 889 (5th Cir. 2006).       Whether Garcia actually knew about the

cold temperature in the trailer and whether he actually set the

thermostat are factual issues that could have been resolved by the

district court upon proper objections. See United States v. Lopez,

923 F.2d 47, 50 (5th Cir. 1991).

     The adjustment for the number of aliens was irrelevant to the

total   offense    level,    which   was   based    on   Garcia’s   reckless

endangerment of the aliens in the trailer.           Garcia has not shown

that the adjustment for the number of aliens had any effect on the

sentence he received and, therefore, has failed to carry his burden

under the plain error standard.            See Olano, 507 U.S. at 734;

Williams v. United States, 503 U.S. 193, 203 (1992).

     Garcia denied culpability for his offense at the sentencing

hearing, in effect renouncing his guilty plea, and he was not

                                      2
entirely cooperative with the probation officer.         The district

court’s determination that Garcia did not accept responsibility is

not without foundation in the record.            See United States v.

Washington, 340 F.3d 222, 227 (5th Cir. 2003).

     Whether     Garcia   was   sentenced   to    imprisonment,     home

confinement, or residency in a halfway house in California in 1995

is a factual issue that could have been resolved had Garcia made a

proper objection in the district court.     Garcia cannot demonstrate

plain error regarding that issue.      See Lopez, 923 F.2d at 50.

     AFFIRMED.




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