                         REVISED February 12, 2008

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals
                                                                                Fifth Circuit


                                       No. 07-20533                         FILED
                                                                         February 1, 2008

                                                                      Charles R. Fulbruge III
UNITED STATES OF AMERICA                                                      Clerk

                                                  Plaintiff-Appellee
v.

MARCO ANTONIO BALDERAS-GONZALEZ

                                                  Defendant-Appellant



               Appeal from the United States District Court for the
                           Southern District of Texas
                          (USDC No. 4:07-CR-99-ALL)


Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
Wiener, Circuit Judge:*
       Defendant-Appellant Marco Antonio Balderas-Gonzalez (“Balderas”)
pleaded guilty to transporting an illegal alien within the United States for
private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). At sentencing,
the district court imposed a two-level enhancement for “intentionally or
recklessly creating a substantial risk of death or serious bodily injury to another


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-20533

person” because three illegal aliens were found to be in the trunk of the car that
Balderas was driving. Balderas appeals his sentence, arguing that the district
court clearly erred in enhancing his sentence without evidence that Balderas
knew or had reason to know that, in addition to himself and the others who were
inside the car, three more aliens had been loaded into the trunk of the vehicle
before he was given the keys and asked to drive it. We agree.
                            I. Facts & Proceedings
      In late February 2007, a Texas Department of Public Safety Trooper
observed a Ford Taurus speeding northbound on Highway 59, just south of
Pierce, Texas. The Trooper, who was traveling southbound, turned his vehicle
around and activated his emergency lights. The Taurus slowed and stopped at
the right shoulder of the road.     Immediately after coming to a stop, the
passenger doors opened, and four individuals got out and started running
towards abandoned railroad tracks and heavy brush. After these four occupants
(one of whom was Balderas) were apprehended, a search of the vehicle revealed
three more male subjects hidden in the trunk.
      All seven occupants of the vehicle were undocumented immigrants. The
three individuals who were traveling in the passenger compartment of the
Taurus with Balderas identified him as the driver of the Taurus, which he freely
confirmed. The three individuals who were traveling in the trunk were unable
to identify Balderas as the driver. Balderas stated that he was one of several
aliens who had been smuggled into the United States sometime previously, and
that earlier that day he had been approached by one of the smugglers and
offered a $1,000 discount from his $1,500 smuggling fee if he would drive a
vehicle containing other illegal aliens—and he accepted the offer. There were
no recordings or transcriptions of the discussion at the scene of the arrest.
      Three weeks later, Balderas pleaded guilty to transporting an alien in the
United States for commercial or private financial gain by means of a motor


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                                  No. 07-20533

vehicle, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Using the 2006 version of the
sentencing guidelines, the probation department recommended, inter alia, a
two-level upward adjustment for intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another person because the
offense involved transporting aliens in the trunk of the vehicle. Balderas
objected to the recommendation on the basis that he had no idea that aliens had
been loaded into the trunk of the Taurus. According to Balderas, he was handed
the keys to the car after the car had already been loaded, told to drive it,
following the lead car driven by the “coyotes.” The probation officer defended the
two-level enhancement by stating that “[s]ince the defendant traveled with this
group of aliens, it is possible that the defendant was present when the aliens
were being loaded and that he would have seen some aliens get into the trunk.
Additionally, during an alien smuggling offense, it is not uncommon and it is
reasonably foreseeable, that aliens would travel in any available space, including
the trunk.”1 The probation officer went on to note that “[t]he court may wish to
consider whether the guideline application in this case accurately represents the
true seriousness and harm [of the offense].”
      At sentencing, Balderas restated his objection to the reckless
endangerment enhancement and requested a below-guidelines sentence of time
served to six months. The district court rejected Balderas's objection and stated
that it was “relying on the presentence report” to establish that he knew or
should have known that aliens were in the trunk of the Taurus.
                                  II. Discussion
A. Standard of Review




      1
          (emphasis added).

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      We review the district court’s application of the sentencing guidelines de
novo, and its factual findings for clear error.2


B. Analysis
      Federal sentencing guidelines provide for a two-level sentence
enhancement if “the offense involved intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another person.”3
Commentary to the guidelines states that “reckless conduct” includes “a wide
variety of conduct (e.g., transporting persons in the trunk or engine
compartment of a motor vehicle . . . ).”4 The government bears the burden of
proving, by a preponderance of the evidence, the factors for enhancement under
the sentencing guidelines.5
      Neither party disputes that transporting aliens in the trunk of a car
presents a substantial risk of death or serious bodily injury. So, the only issue
for our review is whether Balderas intentionally or recklessly created the risk of
harm. The government contends that he did thus create the risk of harm
because he knew or should have known that aliens had been loaded into the
trunk of the Taurus. In its effort to support this argument (and in the absence
of any direct evidence), the government relies on the facts that (1) Balderas
traveled with a group of aliens for several days prior to driving the vehicle, (2)
he was present during daylight hours at the location where the aliens were
loaded into the Taurus, and (3) there is no evidence that he was not present
when the three males got into the trunk of the car.


      2
          United States v. Ho, 311 F.3d 589, 608 (5th Cir. 2002).
      3
          U.S.S.G. § 2L1.1(b)(6).
      4
          U.S.S.G. § 2L1.1 cmt. n.5.
      5
          United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007).

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                                  No. 07-20533

      Balderas does not dispute that he was present at the general location
where he and the other illegal aliens got into the Taurus, or that he had traveled
with some of the aliens for many days prior to driving the Taurus. Balderas has
insisted all along, however, that he did not witness the loading of the three
aliens into the trunk of the car. This contention is supported by statements in
the PSR that Balderas “was given the keys to the vehicle after it was already
loaded, and told to drive.” Additionally, the PSR states that Balderas had a
minimal role in the conspiracy and that his knowledge of the operation appeared
to be “limited.” As nothing in the record describes the location where the taurus
was loaded, therefore, neither we nor the sentencing court may infer that
Balderas saw anyone get into the trunk of the vehicle, or where they had done
so, simply because he and three others got into the car somewhere during
daylight hours immediately before he drove off.
      At oral argument, the government asserted that the phrase “loaded with
aliens,” which is used to describe the Taurus in the PSR and the complaint,
evidences Balderas’s knowledge of the aliens. We cannot agree. Although the
word “loaded” might indicate that aliens were placed in any available space
(including the trunk), it is equally probable that the word was used to indicate
simply that the vehicle contained cargo, i.e., that it was not empty.
Furthermore, it is anything but clear that the word “loaded” was actually used
by Balderas, who speaks no English. This phrase was not included in the
translated written statement prepared for him; it only appears in the PSR and
the complaint. We may not infer Balderas’s knowledge without evidence that
the specific word he used was properly translated, or that he used it to imply
that the car was “at maximum capacity,” and not just that human cargo had
been placed in the car.
      Alternatively, the government insists that, even if Balderas did not
witness the entry of the aliens into the trunk of the Taurus, he should have


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                                        No. 07-20533

known that aliens were in the trunk because three of the aliens who had been
traveling in his group were not with him in the passenger compartment of the
Taurus. There is no evidence in the record to suggest that Balderas had been
traveling with precisely six other aliens, or that all of the aliens were
transported at the same time. Additionally, Balderas contends that he was
following another car, which could have contained other aliens from his group,
at the time he was apprehended. Although there is no evidence in the record,
aside from Balderas’s statement, to support his assertion that there was another
vehicle, even the special agents acknowledged that Balderas was nothing but
fully candid and credible about his involvement in the smuggling operation. The
government offered no evidence to cast doubt on Balderas’s statement that he
was following another car.
      Our review of the evidence in the record reveals only the mere possibility
that Balderas knew or should have known that aliens were loaded in the trunk
of the Taurus. And, a mere possibility is insufficient to meet the government’s
burden of proving, by a preponderance of the evidence, that Balderas
intentionally or recklessly created a substantial risk of death or serious bodily
injury under 2L1.1(b)(6).
      In yet another alternative argument, the government advances that
Balderas should be held accountable for transporting aliens in the trunk of the
Taurus because, under U.S.S.G. 1B1.3(a)(1)(B), a defendant is responsible for
“all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity,” regardless of whether the defendant was
charged with conspiracy. To be held accountable under this provision, though,
the conduct sought to be attributed to the defendant must occur after the
defendant joined the conspiracy.6 Therefore, Balderas is only accountable under



      6
          United States v. Reinhart, 357 F.3d 521, 528 (5th Cir. 2004).

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Section 1B1.3(a)(1)(B) if he joined the conspiracy prior to the time these three
male aliens got into the trunk of the vehicle. The record is devoid of evidence or
inference that he had.
      The district court did not entertain the government’s conspiracy argument
at sentencing; therefore, it did not make a factual finding regarding when
Balderas joined the conspiracy. Our review of the record leads us to conclude
that there is insufficient evidence to prove that Balderas agreed to drive the
Taurus—and entered the conspiracy—prior to the loading of the trunk of the
vehicle. Therefore, Balderas cannot be held accountable under 1B1.3(a)(1)(B).
                                III. Conclusion
      The district court clearly erred when it enhanced Balderas’s sentence
under 2L1.1(b)(6) without evidence that he knew or should have known that he
was transporting aliens in the trunk of the Taurus. We therefore VACATE the
sentence imposed by the district court, and REMAND for resentencing in
accordance with this opinion. Because Balderas has already served most of his
sentence and has but a couple of months remaining to be served, we urge the
district court to expedite disposition of this matter on remand.




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                                  No. 07-20533

RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:
      In the light of the district court’s finding, based, inter alia, on the
presentence investigation report (PSR), that Balderas intentionally or recklessly
created a substantial risk of death or serious bodily injury, and our reviewing
that finding only for clear error, I would affirm the sentence imposed by the
district court. For example, pursuant to Balderas’ written statement, the PSR
stated that Balderas was “asked . . . if he was interested in driving a car loaded
with illegal aliens”. (Emphasis added.) It is not clearly erroneous to find this
indicated more persons were in the vehicle than just on the front and back seats.
In short, under the well-established standards for a district judge to adopt the
PSR, it was not clearly erroneous to find Balderas knew, or should have known,
illegal aliens were in the trunk. I respectfully dissent.




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