                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                    June 2, 2003
                         FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk


                                No. 02-41603

                           Summary Calendar


UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

                            versus

ISMAEL PINEDA-GUILLEN,

                                        Defendant-Appellant.



           Appeal from the United States District Court
                For the Southern District of Texas
                          (C-02-CR-201-1)




Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Ismael Pineda-Guillen appeals from his guilty-plea conviction

and sentence for transporting illegal aliens within the United

States,   in   violation   of    8   U.S.C.    §   1324(a)(1)(A)(ii)      and

(a)(1)(B)(ii).    He argues that the factual basis was insufficient

to establish the requisite mens rea element for his crime of

conviction, thereby rendering his guilty plea involuntary as a

     *
      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this opinion should not be published and is not precedent except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.
matter of constitutional law and constituting a violation of FED.

R. CRIM. P. 11(c)(1).   As Pineda was driving a vehicle containing a

group of illegal aliens, of which he was a member, traveling from

Mexico to Houston, Texas, his transportation of those illegal

aliens was “in furtherance of the alien’s unlawful presence.”1

Regardless of the standard of review that we apply, Pineda’s

challenges to the voluntariness of his guilty plea fail because the

factual basis was sufficient to establish the requisite mens rea

element.

     Pineda contends that the district court erred by failing to

grant him a three-level reduction under U.S.S.G. § 3B1.2 for having

a mitigating role in his offense of conviction.    Pineda’s attempt

to minimize his role in the instant offense by alleging that his

role was insignificant in light of a larger conspiracy does not

warrant a reduction under U.S.S.G. § 3B1.2.2       He has therefore

failed to show that the district court’s refusal to grant him this

reduction constituted clear error.3

     Pineda also argues that the district court erred by increasing

his sentence under U.S.S.G. § 2L1.1(b)(5) because his offense

involved intentionally or recklessly creating a substantial risk of

     1
         United States v. Merkt, 764 F.2d 266, 270-71 (5th Cir.
1985).
     2
         See United States v. Atanda, 60 F.3d 196, 199 (5th Cir.
1995).
     3
         See Burton v. United States, 237 F.3d 490, 503 (5th Cir.
2000).

                                  2
death    or   serious   bodily   injury   to   the   illegal   aliens   he

transported.    In light of the evidence in the record, the district

court’s finding that Pineda was aware that illegal aliens were

being transported in the trunk of the vehicle he was driving was

not clearly erroneous.4      Based on this finding, application of

U.S.S.G. § 2L1.1(b)(5) was warranted.5

     Accordingly, the district court’s judgment is AFFIRMED.




     4
       See United States v. Miranda, 248 F.3d 434, 446 (5th Cir.),
cert. denied, 534 U.S. 980 (2001).
     5
         See U.S.S.G. § 2L1.1, comment. (n.6).

                                    3
