     Case: 11-51164       Document: 00512095429         Page: 1     Date Filed: 12/27/2012




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

                                                                            FILED
                                                                        December 27, 2012
                                     No. 11-51164
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

VICTOR GONZALEZ-ROSALES,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:11-CR-191-1




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Victor Gonzalez-Rosales appeals the sentence imposed following his guilty-
plea conviction of knowingly bringing an illegal alien into the United States, at

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-51164     Document: 00512095429      Page: 2    Date Filed: 12/27/2012

                                  No. 11-51164

a place other than a designated port of entry, for commercial advantage or pri-
vate financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(i) and 18 U.S.C. § 2.
Gonzalez-Rosales contends that the district court reversibly erred when it
enhanced his offense level under U.S.S.G. § 2L1.1(b)(6) for transporting aliens
in a way that created a substantial risk of death or serious bodily injury.
      We review the district court’s application of the sentencing guidelines de
novo and its findings of fact for clear error. United States v. Cuyler, 298 F.3d
387, 389 (5th Cir. 2002). The question whether conduct creates a substantial
risk of death or serious bodily injury is a legal question that is reviewed de novo.
United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005). The factual
findings underlying the legal determination of endangerment are 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 and citation omitted). “[A] district court is permitted
to draw reasonable inferences from the facts, and these inferences are fact-find-
ings reviewed for clear error as well.” United States v. De Jesus-Ojeda, 515 F.3d
434, 442 (5th Cir. 2008) (internal quotation marks and citation omitted).
      The district court found that seven people were riding in a five-passenger
GMC Yukon. In addition to the driver and front seat passenger, four aliensSS
none with a seatbeltSSwere in the back seat. One was lying in the cargo area
with an unsecured metal-rimmed tire and tire tool. The court determined that
in the event of an accident, passengers not wearing their seatbelts would not
have been as safe as those wearing them and that the person lying in the cargo
area with the unsecured tire and tool would have been in an even more precari-
ous position. Specifically, the court found that the unsecured, full-sized, metal-
rimmed tire was an aggravating factor that created a substantial risk of death
or serious bodily injury, because it could have limited the aliens’ ability to exit
the vehicle quickly. Further, if an accident had occurred, the tire and tool could
have become dangerous projectiles or could have landed on top of the aliens.

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                                  No. 11-51164

      The district court’s factual findings are plausible in light of the record as
a whole and thus are not clearly erroneous. See United States v. Mata, 624 F.3d
170, 175 (5th Cir. 2010). Therefore, the district court did not err when it
enhanced Gonzalez-Rosales’s offense level under § 2L1.1(b)(6). See Mata, 624
F.3d at 173-75; Cuyler, 298 F.3d at 390-91.
      AFFIRMED.




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