     Case: 19-40603   Document: 00515489792        Page: 1   Date Filed: 07/15/2020




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

                                                                    FILED
                                                                  July 15, 2020
                                    No. 19-40603                 Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

LOUIS LUYTEN,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before WIENER, ENGELHARDT, and OLDHAM, Circuit Judges.
KURT D. ENGELHARDT, Circuit Judge:
      Louis Luyten pleaded guilty to conspiracy to transport undocumented
aliens within the United States by means of an aircraft. The district court
sentenced Luyten to 33 months of imprisonment and three years of supervised
release. Luyten appeals his sentence, arguing that the district court
erroneously enhanced his offense level under United States Sentencing
Guidelines (U.S.S.G.) § 2L1.1(b)(6) for recklessly creating a substantial risk of
death or serious bodily injury. We AFFIRM.
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                                        I.
      Luyten pleaded guilty, with the benefit of a plea agreement, to
conspiracy to transport undocumented aliens within the United States, in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I), and (a)(1)(B)(i)—count
one of a five-count indictment. As detailed in the indictment and factual basis,
on or about November 4, 2018, Luyten conspired to transport illegal aliens by
aircraft from one part of Texas to another in furtherance of their unlawful
presence in the United States. Luyten admitted that he knew his passengers
were illegally in the United States and that he was paid $3,000 to fly them
from Weslaco to Houston.
      According to the Presentence Investigation Report (PSR), Luyten
transported undocumented aliens in an aircraft on at least three other
occasions prior to his arrest (August 20, 2018; August 23, 2018; and August 25,
2018), during which he transported a total of eleven aliens in exchange for
financial gain. Luyten was apprehended on November 4, 2018, at the Mid-
Valley Airport in Weslaco, Texas, as he was attempting to take-off in a 1978
Mooney M20K aircraft transporting four additional undocumented aliens from
Guatemala, Honduras, and El Salvador.
      The PSR determined that Luyten recklessly created a substantial risk of
death or serious bodily injury to another person when he transported five
persons (four undocumented aliens and himself) in an aircraft with a seating
capacity of four, while his pilot’s license was revoked. The PSR identified three
separate trips, including the November 2018 incident, where Luyten piloted
an aircraft that carried passengers in excess of the authorized seating capacity
of four. The PSR also stated that Luyten, age 81, was transporting these aliens
without a pilot’s license, which had been permanently revoked in connection
with his drug conviction in 2007—approximately eleven years prior to the
instant offense. Based on these reasons, the PSR applied the reckless
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endangerment enhancement and increased Luyten’s base offense level to 18
(an effective increase of 3 levels)1 pursuant to U.S.S.G. § 2L1.1(b)(6).
       Additionally, the PSR applied a two-level adjustment for use of a special
skill and accounted for a three-level decrease for acceptance of responsibility,
resulting in a projected total offense level of 17. As calculated in the PSR
addendum, Luyten’s total offense level of 17 and criminal history category of
III yielded a Guideline imprisonment range of 30–37 months.
       Luyten filed written objections to the PSR, challenging, inter alia, the
applicability of the reckless endangerment enhancement. He argued that the
enhancement was improper because the plane never took off and claimed that
he could not create a substantial risk of death or serious bodily injury because
he possessed special skills as a pilot.2 At sentencing, Luyten reurged his
objection, emphasizing that he had served honorably as a colonel in the NATO
Air Force, had taught at various schools as a flight instructor, and was a
competent and skilled pilot. Thus, he asserted there was no risk of death or
serious bodily injury.
       The district court overruled Luyten’s objection to the enhancement
under U.S.S.G. § 2L1.1(b)(6). The court found the reckless endangerment
enhancement proper because Luyten transported more people in the airplane
than its seating capacity, which affected the safety and weight of the aircraft.


       1   In accordance with the 2018 U.S.S.C. Guidelines Manual, the probation officer began
with a base offense level of 12, U.S.S.G. § 2L1.1(a)(3), which was increased by three levels
based on the number of unlawful aliens the defendant transported, § 2L1.1(b)(2)(A).
         2 In response, the United States Probation Office disagreed with Luyten’s objection

and maintained that the enhancement was warranted for the following reasons: (1) Luyten
transported aliens in an airplane “loaded with one extra passenger” in excess of the four
person seating capacity on multiple occasions, including his attempt to transport an
additional four aliens on November 4, 2018; (2) Luyten, who is 81 years old, was operating
the aircraft with a revoked license (revoked in 2007); (3) Luyten was in his 80s and “vision
begins to deteriorate as we get older”; and (4) Luyten reported difficulty sleeping due to pain
associated with a rotator cuff tear, resulting in surgery one month after his August 2018
flights.
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Applying an additional one level downward departure for early disposition but
otherwise adopting the PSR, the court determined the revised Guideline range
to be 27–33 months and sentenced Luyten (within that range) to 33 months of
imprisonment, followed by three years of supervised release. Luyten appealed.
      On appeal, Luyten renews his objection to the district court’s application
of the reckless endangerment enhancement under § 2L1.1(b)(6). According to
Luyten, the enhancement was improper because it was based, not on specific
facts showing the aliens were in danger, but instead on the fact that Luyten
transported five persons in an aircraft with a seating capacity of four, while
his pilot’s license was revoked. This is insufficient for the enhancement, he
asserts, because the Guidelines make clear that the enhancement does not
apply when only one extra passenger is present, but rather applies when there
are substantially more passengers than the rated capacity of the vehicle and
there was no evidence that the aliens were unsafe or adversely affected the
weight of the plane. Additionally, Luyten argues there was no endangerment
because he was an expert pilot with years of training and experience and
claims his license was revoked because of his criminal conviction, not for any
reason related to his ability as a pilot.
                                        II.
      We review the district court’s application of the Sentencing Guidelines
de novo and its factual findings for clear error. United States v. Muniz, 803
F.3d 709, 712 (5th Cir. 2015). In determining whether an enhancement applies,
the district court may draw reasonable inferences from the facts, and we credit
these inferences absent clear error. Id. “A finding is not clearly erroneous
unless it is implausible in ‘light of the record as a whole.’” Id. (quoting United
States v. Ramos-Delgado, 763 F.3d 398, 400 (5th Cir. 2014)). “The government
must prove sentencing enhancements by a preponderance of the evidence.”
United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010). We may affirm on
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any ground supported by the record. United States v. Chacon, 742 F.3d 219,
220 (5th Cir. 2014).
                                        III.
      Pursuant to U.S.S.G. § 2L1.1(b)(6), a defendant’s base offense level for
smuggling, transporting, or harboring an unlawful alien is increased if the
offense “involved intentionally or recklessly creating a substantial risk of death
or serious bodily injury to another person.” U.S.S.G. § 2L1.1(b)(6) (2018). The
enhancement results in a two-level increase, unless the resulting offense level
is less than level 18, then the offense level is increased to 18. Id.
      Section 2L1.1(b)(6) “covers a ‘wide variety of [reckless] conduct[.]’”
Muniz, 803 F.3d at 712 (quoting now-U.S.S.G. § 2L1.1 cmt. n.3). The Guideline
commentary’s application notes provide four examples of conduct warranting
the reckless-endangerment enhancement:
      [1] transporting persons in the trunk or engine compartment of a
      motor vehicle;
      [2] carrying substantially more passengers than the rated capacity
      of a motor vehicle or vessel;
      [3] harboring persons in a crowded, dangerous, or inhumane
      condition; or
      [4] guiding persons through, or abandoning persons in, a
      dangerous or remote geographic area without adequate food,
      water, clothing, or protection from the elements.

U.S.S.G. § 2L1.1 cmt. n.3.
      These examples are illustrative and non-exhaustive. See United States
v. Zuniga-Amezquita, 468 F.3d 886, 888 (5th Cir. 2006) (“[T]his guideline is not
limited to the examples provided in the commentary.”). A “single, bright-line
test is not necessarily appropriate” because the § 2L1.1(b)(6) enhancement
“must be applied to a wide variety of factual settings.” Id. at 889; see also
United States v. Mata, 624 F.3d 170, 174 (5th Cir. 2010). Accordingly, the
“contours of this sentencing enhancement depend on a careful application of

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the guidelines on a case-specific basis.” Zuniga-Amezquita, 468 F.3d at 888
(citing United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005)). “[T]he
relevant inquiry focuses on whether the defendant’s conduct ‘pose[d]
inherently dangerous risks to the aliens being transported.’” United States v.
Ruiz-Hernandez, 890 F.3d 202, 212 (5th Cir. 2018) (quoting Solis-Garcia, 420
F.3d at 516). “The actual results of the defendant’s conduct are irrelevant.” Id.
       Although we have not previously applied a U.S.S.G. § 2L1.1(b)(6)
enhancement in this particular context, we conclude that the enhancement
was warranted in this case.3 Luyten’s decision to fly more passengers aboard
a small airplane than it was rated to carry, without a valid pilot’s license
(which had been revoked for over a decade), posed an inherently dangerous
risk of death or serious bodily injury to the aliens he transported. Luyten made
multiple trips transporting aliens in excess of the airplane’s seating capacity
and without a valid pilot’s license. Although there was only one additional




       3 Although this case is distinguishable in that Luyten piloted an airplane to transport
the aliens, our case law is consistent with our affirmance of the instant enhancement. We
have repeatedly held that the § 2L1.1(b)(6) enhancement is appropriate where the defendant
transported unrestrained aliens in a bed of a pickup truck. See, e.g., United States v. Cuyler,
298 F.3d 387, 391 (5th Cir. 2002) (reasoning that the defendant created a substantial risk of
death or serious bodily injury to the unrestrained passengers because they “easily can be
thrown from the bed of the pickup in the event of an accident or other driving maneuver of
the sort that is unavoidable in highway driving”); United States v. Maldonado-Ochoa, 844
F.3d 534, 537 (5th Cir. 2016) (collecting cases). Additionally, we have upheld the
enhancement when the aliens were transported in a manner that significantly hindered their
ability to exit the vehicle and posed a great risk of injury in the event of an accident. See
Zuniga-Amezquita, 468 F.3d at 890 (affirming the enhancement when the defendant
transported aliens in the cargo area of a van, surrounded by luggage and stacked boxes
containing bottles of beer, reasoning that the boxes and luggage piled to the ceiling of the
vehicle impeded the aliens’ ability to exit the vehicle quickly and posed a greater risk of injury
in the event of an accident). But see Solis-Garcia, 420 F.3d at 516 (concluding that the
reckless endangerment enhancement does not apply to a defendant transporting illegal
aliens in the cargo area of a minivan who are not wearing seatbelts without proof of additional
aggravating factors).
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passenger over the airplane’s seating capacity of four, that passenger was
necessarily unrestrained.4
       It can reasonably be inferred that an unrestrained passenger aboard a
small airplane experiencing turbulence faces a substantial risk of serious
bodily injury, or even death. The risk to an unrestrained passenger on an
airplane is substantially heightened in the event of an accident or crash. See
Zuniga-Amezquita, 468 F.3d at 889 (The “danger to [the aliens] if an accident
occurs” is a factor to consider in applying § 2L1.1(b)(6).). Further, an additional
reasonably foreseeable risk associated with flying with one passenger over
capacity, as discussed by the district court, is the potential effect on the weight
of the airplane. “[T]he enhancement applies for creating a risk of harm; no
harm at all need actually occur to warrant its application.” Ruiz-Hernandez,
890 F.3d at 212; see also United States v. Maldonado-Ochoa, 844 F.3d 534, 537
(5th Cir. 2016) (affirming the application of § 2L1.1(b)(6) where the defendant
“started to drive with unrestrained persons lying in the bed of his truck,” even
though he was pulled over as soon as his vehicle began to move and no one was
injured).
       Luyten’s argument to the contrary is unavailing. Luyten asserts that the
enhancement cannot be justified by the fact that he flew the airplane with just
one person over the rated capacity because the Guideline only applies when
there are substantially more passengers than the rated capacity. Luyten’s
interpretation is mistaken. “The application of § 2L1.1(b)(6) requires a fact-
specific inquiry because . . . [it] is intended to apply to a wide variety of
conduct.” Mata, 624 F.3d at 174; accord Maldonado-Ochoa, 844 F.3d at 537
(stating that “because courts must engage in a ‘fact-specific’ inquiry . . . we


       4 The FAA requires all passengers two years or older on board a commuter airplane
to have their own “approved seat or berth with a separate safety belt properly secured about
him or her during movement on the surface, takeoff, and landing.” 14 C.F.R. § 135.128(a).
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have avoided creating bright-line rules for this [guideline]”). The commentary
lists as an example of reckless conduct to which the adjustment applies,
“carrying substantially more passengers than the rated capacity of a motor
vehicle or vessel.” U.S.S.G. § 2L1.1 cmt. n.3. However, the “examples are not
per se rules,” but require courts to consider the “specifics of the situation.”
United States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir. 2008). Here, it is
relevant that airplanes present distinct risks and dangers to passenger safety.
       Moreover, Luyten—age 81—was flying an airplane that exceeded the
passenger capacity without a pilot’s license, which had been permanently
revoked by the Federal Aviation Administration in 2007—approximately
eleven years prior to the instant offense. The requirements for maintaining an
airman certificate (pilot’s license) are in place to ensure a pilot’s competency
and ongoing fitness to operate a plane safely.5 See generally Ventress v. Japan
Airlines, 747 F.3d 716, 721 (9th Cir. 2014) (Aviation safety, including “pilot
qualifications and medical standards for airmen,” is “pervasively regulated” by
the FAA.). Airman certificates are only issued to individuals who are
determined to be “qualified and physically able to perform the duties related
to the certified position.” Id. Operating an aircraft without satisfying the
licensure requirements further compounds the substantial risk of serious
injury or death to the passengers.
       Here, the aliens were transported on a small aircraft in excess of the
seating capacity flown by Luyten who had not held a valid pilot certificate for
eleven years. The totality of these specific facts and reasonable inferences
supports the conclusion that the manner in which Luyten transported these


       5 A pilot must have an authorized pilot certificate to operate an aircraft in the United
States. See 14 C.F.R. § 61.3(a). To ensure pilots are physically able to perform their duties,
14 C.F.R. § 61.3(c) requires that a pilot hold a medical certificate in addition to a pilot
certificate. Luyten concedes that he has not held a valid pilot’s license in the United States
since it was revoked in 2007.
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aliens involved “inherently dangerous practices that produce[d] substantial
risks of death or serious bodily injury,” which is precisely the conduct the
enhancement is intended to punish. Solis-Garcia, 420 F.3d at 516.
                                      IV.
      Because the offense involved recklessly creating a substantial risk of
death or serious bodily injury to another person, the district court did not err
in its imposition of the sentencing enhancement under U.S.S.G. § 2L1.1(b)(6).
Accordingly, the judgment of the district court is AFFIRMED.




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