                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 March 21, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40548
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

RAUL JUAREZ, III,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-2022-ALL
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Raul Juarez, III, appeals his guilty-plea conviction of

transporting undocumented aliens within the United States by

means of a motor vehicle for private financial gain.        Juarez

argues that the facts of this case do not give rise to the level

of endangerment required for an enhancement under U.S.S.G.

§ 2L1.1(b)(5).

     The presentence report detailed that two material witnesses

stated that Juarez instructed them to get under the bed of the


     *
       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this opinion should not be published and is not precedent except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. 05-40548
                                 -2-

sleeper of the tractor trailer driven by Juarez; that they were

“squeezed in and unable to breathe;” and that “they were banging

the compartment top to get someone’s attention.”    The district

court’s application of the enhancement was not error.    See United

States v. Villanueva, 408 F.3d 193, 203 (5th Cir.), cert. denied,

126 S. Ct. 268 (2005); see also United States v. Ortiz, 242 F.3d

1078, 1078-79 (8th Cir. 2001); U.S.S.G. § 2L1.1(b)(5), comment.

(n.6).

       Alternatively, Juarez argues that he was not the individual

responsible for creating a substantial risk of death or serious

bodily injury because he did not direct the aliens where to hide,

nor could he have because the aliens spoke Portugese and he does

not.    He argues that it was the guide who arranged the aliens in

the tractor and that Juarez could not have foreseen that the

aliens were going to place themselves where they did.    Because

Juarez did not present any rebuttal evidence establishing that

the information in the presentence report regarding his placement

of the aliens was materially untrue, the district court’s

application of the enhancement under U.S.S.G. § 2L1.1(b)(5) was

not error.    See United States v. Alford, 142 F.3d 825, 832 (5th

Cir. 1998).

       Finally, Juarez argues that the district court should not

have assessed the reckless endangerment enhancement because there

was no jury finding on the enhancement nor did he admit to the

enhancement and because the indictment failed to allege that he
                          No. 05-40548
                               -3-

intentionally or recklessly created a substantial risk of death

or serious bodily injury to another person.   First, Juarez’s

argument regarding the indictment is factually inaccurate.

Second, even after United States v. Booker, 543 U.S. 220 (2005),

the sentencing judge may find facts relevant to the determination

of a Guideline’s sentencing range.   United States v. Mares, 402

F.3d 511, 519 (5th Cir. 2005).   The district court’s judgment is

AFFIRMED.
