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

                                                FILED
                                                                May 11, 2009
                               No. 08-10836
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JESSICA ROMERO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 6:08-CR-9-ALL


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Jessica Romero appeals the sentence imposed following her guilty plea
conviction for transporting illegal aliens for private financial gain. Romero
argues that the district court erred by applying an enhancement pursuant to
U.S.S.G. § 2L1.1(b)(6) for her creating a substantial risk of death or serious
bodily injury to another person. Romero maintains that her conduct did not rise




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                    No. 08-10836

to a level sufficient to support the enhancement and that her intended conduct
could not be used to support the enhancement.
      We review the district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).           Whether Romero’s
conduct in transporting illegal aliens warranted the § 2L1.1(b)(6) enhancement
is a legal question that we review de novo. See United States v. Solis-Garcia, 420
F.3d 511, 514 (5th Cir. 2005).
      If a transporting-aliens offense “involved intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another person,”
the defendant’s offense level should be “increase[d] by 2 levels, but if the
resulting offense level is less than level 18,” it should be “increase[d] to level 18.”
§ 2L1.1(b)(6). “Reckless conduct to which the adjustment . . . applies includes a
wide variety of conduct (e.g., transporting persons in the trunk or engine
compartment of a motor vehicle, carrying substantially more passengers than
the rated capacity of a motor vehicle or vessel, or harboring persons in a
crowded, dangerous, or inhumane condition).” Id., comment. (n.5).
      The record shows that Romero transported aliens in the uncovered bed of
her pickup truck on an isolated dirt road in the middle of the night for a time
period of less than one and a half hours. She then turned onto Highway 163,
and she was stopped by Border Patrol agents shortly thereafter.
      In United States v. Cuyler, 298 F.3d 387, 388-89 (5th Cir. 2002), this court
considered the application of § 2L1.1(b)(6) 1 to a defendant who was apprehended
while driving on Interstate 10 with four illegal aliens in the uncovered bed of his
pickup truck. This court held that the application of the enhancement was
proper because “[a]liens who are unrestrained easily can be thrown from the bed



      1
       At the time, the subsection that is now § 2L1.1(b)(6) was numbered
§ 2L1.1(b)(5). See § 2L1.1(b)(5) (2001).

                                          2
                                  No. 08-10836

of the pickup in the event of an accident or other driving maneuver of the sort
that is unavoidable in highway driving.” Id. at 391.
      In United States v. Angeles-Mendoza, 407 F.3d 742, 750-51 & n.16 (5th Cir.
2005), the defendants transported illegal aliens in the bed of a modified pickup
truck covered only by a tarp or heavy rubber cover. The defendants challenged
the district court’s application of an enhancement under § 2L1.1(b)(6), arguing
that Cuyler was inapplicable because there was no evidence that the aliens had
been transported on a highway. Id. at 750-51 & n.17. This court rejected the
defendants’ attempt to distinguish Cuyler, holding that “[o]ver the long distances
that the aliens were transported in this operation, there existed the similar,
substantial risk that the aliens might ‘be thrown from the bed of the pickup in
the event of an accident or other driving maneuver of the sort.’” Id. at 751 n.17
(quoting Cuyler, 298 F.3d at 391).
      While Romero attempts to distinguish Cuyler and Angeles-Mendoza by
noting that she barely traveled on a highway and did not travel a long distance,
Cuyler “dictates that the adjustment is appropriate where the smuggled aliens
are transported in the bed of a pickup truck.” Angeles-Mendoza, 407 F.3d at 751.
Romero has not shown that the district court erred by applying the
enhancement. See id. As the conduct Romero committed was sufficient to
support the enhancement, we do not reach the issue of whether the
enhancement could have been applied based upon Romero’s intended conduct.
      AFFIRMED.




                                        3
