     Case: 09-40806     Document: 00511046519          Page: 1    Date Filed: 03/09/2010




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

                                                  FILED
                                                                            March 9, 2010

                                     No. 09-40806                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

LARRY JOHNSON,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:08-CR-1906


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant–appellant Larry Johnson appeals the sentence imposed
following his guilty plea to two counts of transporting an undocumented alien for
financial gain.     On appeal, Johnson argues that the district court erred in
applying the reckless endangerment enhancement pursuant to § 2L1.1(b)(6) of
the United States Sentencing Guidelines.                For the following reasons, we
AFFIRM Johnson’s sentence.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                BACKGROUND
      On October 28, 2008, Johnson drove a tractor trailer to the Interstate 35
Border Patrol checkpoint near Laredo, Texas. At the checkpoint, a border patrol
dog alerted to the presence of contraband or persons inside the tractor trailer,
and Johnson’s vehicle was referred to secondary inspection. At the secondary
inspection point, Johnson admitted that there were five people inside the tractor;
further inspection revealed seven undocumented aliens inside the sleeper
compartment of the tractor.
      Johnson was indicted in November 2008 for aiding and abetting the
transportation of two undocumented aliens for commercial advantage and
private gain by means of a motor vehicle in violation of 8 U.S.C. § 1324 and 18
U.S.C. § 2. On January 14, 2009, Johnson pleaded guilty to the indictment, and
the district court accepted Johnson’s guilty plea the next day. The probation
department calculated Johnson’s base offense level at twelve under § 2L1.1(a)(3)
of the United States Sentencing Guidelines (U.S.S.G.). Three levels were added,
pursuant to U.S.S.G. § 2L1.1(b)(2)(a), because Johnson transported seven aliens,
and an increase to level eighteen was recommended, under § 2L1.1(b)(6), for
“intentionally or recklessly creating a substantial risk of death or serious bodily
injury.”   After a two-level reduction for acceptance of responsibility, the
probation department recommended a total offense level of sixteen.           After
assessing one criminal history point, the probation department calculated a
punishment range of 21–27 months.
      At sentencing, Johnson objected to the application of the reckless
endangerment enhancement.        On August 6, 2009, the district court held a
hearing, considering testimony of the border patrol agent who took photographs
of the aliens and photographs of the aliens inside the tractor. The border patrol
agent testified that he was not present when the aliens were discovered;
however, he stated that it was “standard procedure” to keep the aliens positioned

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as they were found until the photographer could document the situation. Of the
photographs taken, one photograph shows several aliens lying on the floor of the
tractor, and another photograph shows an alien sitting on the floor partly inside
a compartment that is intended for a small refrigerator. The district court found
that the photographs accurately depicted the position of the aliens inside the
tractor when discovered by the border patrol; that the aliens were wedged into
the back of tractor; and that one alien was “wedged inside” the small
compartment. The court then overruled Johnson’s objection to the reckless
endangerment enhancement and sentenced Johnson to concurrent 21-month
terms of imprisonment and three years of supervised release. The court stated
that it would have imposed a lesser sentence but for the reckless endangerment
enhancement. Johnson appealed.
                                 DISCUSSION
      “We review a district court’s interpretation of the [sentencing] guidelines
de novo and its factual determinations for clear error.”         United States v.
Solis–Garcia, 420 F.3d 511, 514 (5th Cir. 2005). A factual finding is not clearly
erroneous “if the district court’s finding is plausible in light of the record as a
whole.” United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)
(internal quotation marks omitted). The district court’s determination that a
defendant’s conduct creates a substantial risk of death or serious bodily injury
is a legal conclusion that we review de novo. Solis–Garcia, 420 F.3d at 514.
      Johnson argues that the district court erred in applying the reckless
endangerment enhancement “because the government did not carry its burden
to show that the enhancement applied.” Particularly, Johnson urges that the
district court’s reliance on the photograph showing an alien partially inside the
compartment was improper because the photographer “could not confirm that
the photographs accurately represented how the aliens were originally found[,
and thus] the photograph of the alien ‘wedged in’ a closet, could have been the

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result of the aliens moving as the aliens were removed.” For support, Johnson
points to the report of the border patrol agent, who initially discovered the
aliens, that states that all seven aliens were found lying on the floor covered
with sleeping bags and other items.
      The Government responds that the district court properly found that the
photograph of “the alien ‘wedged into’ a small compartment with his head bent
down” justified the enhancement and that any inconsistency between the
photographer’s testimony and the border patrol report was a credibility—not a
reliability—issue for the district court to consider.
      A district court may consider relevant information at sentencing, provided
that the information has sufficient indicia of reliability. United States v. Gaytan,
74 F.3d 545, 558 (5th Cir. 1996).         “The defendant bears the burden of
demonstrating that the information relied upon by the district court in
sentencing is materially untrue.” United States v. Ramirez, 367 F.3d 274, 277
(5th Cir. 2004).
      Here, the border patrol agent’s testimony concerning the standard
procedure for photographing aliens shortly after discovery provided sufficient
support for the district court to find that the photographs accurately depicted the
positions of the aliens in the tractor. Accordingly, we conclude that the district
court’s findings that the aliens were “wedged into” the tractor and that one alien
was “wedged into” the storage compartment were not clearly erroneous.
      The question then is whether the district court erred by applying the
reckless endangerment adjustment, given its factual findings. There is no single
bright-line test that we apply in determining the applicability of the reckless
endangerment enhancement.          However, this court has developed a non-
exhaustive list of five factors to consider when evaluating whether to apply the
enhancement: “the availability of oxygen, exposure to temperature extremes, the
aliens’ ability to communicate with the driver of the vehicle, their ability to exit

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the vehicle quickly, and the danger to them if an accident occurs.” United States
v. Zuniga–Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). Like here, where
unrestrained aliens are transported within the passenger compartment of a
vehicle, a single aggravating factor may be sufficient to warrant application of
the reckless endangerment adjustment. United States v. Rodriguez–Mesa, 443
F.3d 397, 403 (5th Cir. 2006) (per curiam); see also United States v. Campos, No.
08-41208, 2009 WL 3816969, at *1–2 (5th Cir. Nov. 16, 2009) (unpublished).
One such factor is the alien’s inability to extract himself from the vehicle in
necessary situations. Rodriguez–Mesa, 443 F.3d at 403; Campos, 2009 WL
3816969, at *1.
      In Solis–Garcia, we determined that a defendant who transported four
aliens in the cargo area of a minivan, without seatbelts, did not create a
substantial risk of death or serious bodily injury that justified application of the
reckless endangerment enhancement.            420 F.3d at 516.        However, in
Rodriguez–Mesa, we determined that a defendant who transported an alien in
a contorted position inside a compartment between the front seats of a vehicle
for at least an hour created a substantial risk of death or serious bodily injury
that justified applying the enhancement. 443 F.3d at 403. The alien in that case
had his head and upper body tightly stuffed into the console between the
vehicle’s seats. Id. We distinguished Solis–Garcia on the ground that the alien
would have difficulty extricating himself from the compartment. Id.
      Similarly, in United States v. Garza, 587 F.3d 304, 309 (5th Cir. 2009) (per
curiam), the defendant transported aliens on the floorboards of an extended cab
pickup truck, positioning the aliens partially underneath the back seat and
wedged in between the front and back seats. The district court found that the
alien’s ability to escape the vehicle in case of an accident was significantly
limited and applied the reckless endangerment enhancement; we affirmed on
those grounds. Id. at 309–10. And in Campos, we affirmed the application of the

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reckless endangerment enhancement where an alien had hidden himself inside
a closed bunk bed from which he could not have released himself. 2009 WL
3816969, at *2.
      In United States v. McKinley, an alien was, similar to the present case,
found inside a compartment in a tractor and another three aliens were found
under a ten- to fifteen-pound mattress in the tractor. 272 F. App’x 412, 413 (5th
Cir. 2008) (per curiam). At sentencing, the defendant argued that the alien
found in the compartment must have hidden himself there after the defendant
had left the vehicle at the border patrol checkpoint. Id. The district court, while
skeptical, assumed that the alien had not been in the compartment and
concluded that all four aliens had been under the mattress. Id. at 413 n.2.
Nevertheless,     the    district   court   applied   the   reckless   endangerment
enhancement, concluding that the aliens were at risk of suffocation under the
mattress. Id. at 413. On appeal, we vacated and remanded for resentencing,
determining that the mattress did not create a substantial risk of injury for the
four adult male aliens. Id. We also noted that “[o]n the evidence presented,
there were no extreme temperatures, the aliens could communicate freely with
[the defendant], there were doors for relatively easy escape, there was normal
airflow, and it was not more dangerous to lie in the sleeper compartment than
it would have been to travel without a seatbelt.” Id. at 414.
      Here, the district court’s findings—which are not clearly erroneous—that
seven aliens were wedged into the tractor and that one alien was wedged into
the storage cabinet distinguish this case from McKinley. Because the aliens
were confined in close quarters and one alien was wedged into a small cabinet,
we conclude that the aliens here would face significant difficulties in attempting
to exit the vehicle, should such exit prove necessary. Cf. Garza, 587 F.3d at
309–10 (aliens wedged in-between seats significantly limited ability of aliens to
escape); Rodriguez–Mesa, 443 F.3d at 403 (alien in compartment between seats

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would have difficulty extricating himself from the vehicle); Campos, 2009 WL
3816969, at *2 (alien in closed bunk bed could not release himself). Accordingly,
the aliens here faced a substantial risk of serious harm, possibly death, and the
district court did not err by applying the reckless endangerment enhancement
in determining Johnson’s sentence.
      One motion remains outstanding on this appeal.         Johnson moved to
expedite consideration of the appeal, given his impending release date. Because
we have decided this appeal, we deny Johnson’s motion as moot.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM Johnson’s sentence, and we DENY
the motion to expedite the appeal as moot.
      SENTENCE AFFIRMED; MOTION DENIED AS MOOT.




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