    Case: 15-40424     Document: 00513813235     Page: 1   Date Filed: 12/27/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                  No. 15-40424                    United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                  December 27, 2016
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

                                            Plaintiff–Appellee,

versus

ARTURO MALDONADO-OCHOA

                                            Defendant–Appellant.




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




Before STEWART, Chief Judge, SMITH and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Arturo Maldonado-Ochoa appeals a sentence that includes an enhance-
ment for “intentionally or recklessly creating a substantial risk of death or ser-
ious bodily injury to another person.” United States Sentencing Guidelines
(U.S.S.G.) § 2L1.1(b)(6). The enhancement was for transporting unrestrained
illegal aliens for an extremely short distance. Finding no error, we affirm.
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                                 No. 15-40424
                                       I.
      Border Patrol agents in an unmarked vehicle noticed a pickup going east
on a levee road just north of the Rio Grande River, the Mexican border. The
truck stopped, and a number of individuals emerged from the nearby brush.
Some of them entered the truck’s cab, while others climbed into its bed. Some-
one then covered the bed with a tarp. The agents immediately activated their
lights and siren and approached the truck. The driver was “attempting to
reverse” when the pickup came to a sudden stop and its occupants got out and
fled into the brush. The agents gave chase and apprehended ten, all illegal
aliens, including the driver, Maldonado-Ochoa. He later admitted that he was
the driver and that, by driving the truck, he would have received free transpor-
tation “all the way to Minnesota, where [he] used to live.”

      Maldonado-Ochoa did not transport the aliens very far. One of them said
that the truck “began to move” before a siren was heard and the vehicle came
to a stop. The presentence report (“PSR”) notes that the truck “appeared to be
attempting to reverse before it stopped.” The plea agreement states that the
truck “started to move” before Maldonado-Ochoa and his passengers became
aware of the agents. At the sentencing hearing, the government contended
that “there was very limited movement, but there was movement.”

      Under the plea agreement, Maldonado-Ochoa pleaded guilty of one count
of conspiracy to transport an illegal alien within the United States and two
counts of transporting an illegal alien within the United States for the purpose
of commercial advantage and private financial gain, in violation of 8 U.S.C.
§ 1324. In return, the government moved to dismiss the remaining counts and
urged downward adjustments.

      The PSR calculated a total offense level of 13: a base offense level of 12
per U.S.S.G. § 2L1.1(a)(3), a three-level enhancement for transporting

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                                 No. 15-40424
between 6 and 24 illegal aliens per U.S.S.G. § 2L1.1(b)(2)(A), and a two-level
downward adjustment for acceptance of responsibility per U.S.S.G. § 3E1.1(a).
Given a criminal history score of 16, the recommended guidelines range was
33 to 41 months of imprisonment, with a maximum of ten years.

      At sentencing, the district court granted the government’s motion for a
two-level downward departure for early disposition under U.S.S.G. § 5K3.1.
But the court also informed Maldonado-Ochoa that it was considering a Sec-
tion 2L1.1(b)(6) enhancement for “intentionally or recklessly creating a sub-
stantial risk of death or serious bodily injury to another person.” The court
observed that Maldonado-Ochoa had transported illegal aliens in the bed of his
truck and that doing so “ordinarily warrant[s] that enhancement.”

      Defense counsel maintained that there was not “any type of significant
movement,” no one was injured, Maldonado-Ochoa had done “the safe thing”
and stopped when the agents pulled him over, transporting adults in the bed
of a truck is legal in Texas, and, for all Maldonado-Ochoa knew, he could have
been transporting the aliens only a short distance (he had no idea how far he
was going because he was just following directions as he received them). In
response, the court said that there would have been more movement if the
agents had not interceded, the legality of transporting adults in the bed of a
truck has no bearing on whether the sentencing enhancement applies, trans-
porting illegal aliens in the bed of a truck triggers a Section 2L1.1(b)(6) en-
hancement under Fifth Circuit precedent regardless of whether the aliens were
harmed during the trip, and Maldonado-Ochoa’s ignorance of where he was
going makes him seem even more reckless, given that he had “no way of know-
ing . . . how far and what kind of roads he was going to travel.”

      The court decided to apply the enhancement, resulting in a guideline
range of 33 to 41 months, then imposed a sentence of 37 months plus three

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                                        No. 15-40424
years of supervised release. Without the Section 2L1.1(b)(6) enhancement, the
range would have been 27 to 33 months. On appeal, Maldonado-Ochoa chal-
lenges only that enhancement.

                                               II.
       We review a district court’s interpretation of the Sentencing Guidelines
de novo. United States v. Torres, 601 F.3d 303, 305 (5th Cir. 2010) (per curiam).
Section 2L1.1(b)(6) applies, by its terms, where “the offense involved inten-
tionally or recklessly creating a substantial risk of death or serious bodily
injury to another person.” The application notes provide,
        Reckless conduct to which the adjustment . . . applies includes a
    wide variety of conduct (e.g., transporting persons in the trunk or
    engine compartment of a motor vehicle; carrying substantially more
    passengers than the rated capacity of a motor vehicle or vessel; harbor-
    ing persons in a crowded, dangerous, or inhumane condition; or guiding
    persons through, or abandoning persons in, a dangerous or remote geo-
    graphic area without adequate food, water, clothing, or protection from
    the elements).
U.S.S.G. § 2L1.1, cmt. n.5. Section 2L1.1(b)(6)’s expansive language “must be
given some restrictive meaning.” United States v. Solis-Garcia, 420 F.3d 511,
516 (5th Cir. 2005). Moreover, in applying that subsection, courts must engage
in a “fact-specific inquiry.” United States v. Mata, 624 F.3d 170, 174 (5th Cir.
2010) (per curiam) (footnote and internal quotation marks omitted). Accord-
ingly, we have avoided creating bright-line rules for this provision. 1

       Maldonado-Ochoa posits that he should not be subject to the Section
2L1.1(b)(6) enhancement. He concedes that “transporting unrestrained aliens



       1 See, e.g., United States v. Mateo Garza, 541 F.3d 290, 294–95 (5th Cir. 2008) (explain-
ing that this circuit does not apply per se rules in Section 2L1.1(b)(6) cases); United States v.
Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006) (stating that “a single, bright-line test
is not necessarily appropriate for a guideline that must be applied to a wide variety of factual
settings.”).
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                                       No. 15-40424
in the bed of a pickup truck may create a risk of injury or even death, thus
qualifying for a § 2L1.1(b)(6) enhancement,” but he reasons that because he
drove the passengers only a de minimis distance at a de minimis speed before
being promptly stopped by Border Patrol agents, he never subjected the aliens
to “a substantial risk of death or serious bodily injury.”

       We disagree. The moment Maldonado-Ochoa started to drive with un-
restrained persons lying in the bed of his truck, he subjected them to a sub-
stantial risk of death or serious bodily injury.

       We have repeatedly held that the Section 2L1.1(b)(6) enhancement is
appropriate where the defendant transported unrestrained aliens in the bed of
a pickup truck. The logic is straightforward: Transporting anyone in the bed
of a pickup is inherently dangerous. The leading case is United States v. Cuy-
ler, 298 F.3d 387 (5th Cir. 2002), in which the defendant was driving on an
interstate with four illegal aliens in the bed of his pickup. We held that Sec-
tion 2L1.1(b)(6) applied because the aliens “easily could have been thrown from
the truck and almost certainly would have been injured in the event of an
accident.” Id. at 390. Though the defendant was driving on a highway, in
recent years we have interpreted the holding to apply any time a defendant
transported unrestrained aliens in a pickup bed that was not covered by a
camper shell. 2 In fact, on at least ten occasions we have affirmed a district
court’s decision to apply the enhancement against a defendant caught



       2 See United States v. Romero, 328 F. App’x 300, 301 (5th Cir. 2009) (per curiam)
(quoting United States v. Angeles-Mendoza, 407 F.3d 742, 751 (5th Cir. 2005)) (“Cuyler ‘dic-
tates that the [Section 2L1.1(b)(6)] adjustment is appropriate where the smuggled aliens are
transported in the bed of a pickup truck.’”); United States v. Guevara-Hernandez,
251 F. App’x 859, 860 (5th Cir. 2007) (per curiam) (“Transporting aliens in the bed of a pickup
truck creates a substantial risk of death or serious bodily injury.”); Angeles-Mendoza,
407 F.3d at 751 (“[T]he [Section 2L1.1(b)(6)] adjustment is appropriate where the smuggled
aliens are transported in the bed of a pickup truck.”).
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                                      No. 15-40424
transporting unrestrained aliens in a pickup bed without a camper shell. 3

       Maldonado-Ochoa urges us to carve out an exception to the Cuyler line
of cases for defendants who, like him, have transported illegal aliens only a
very short distance. But unfortunately for Maldonado-Ochoa, we have already
encountered similar facts. In Castro Mendoza, 412 F. App’x at 709, we upheld
the application of Section 2L1.1(b)(6) against a defendant who was caught driv-
ing a pickup truck with unrestrained aliens in the bed, even though, as ac-
knowledged in the defendant’s brief, he drove just two miles and at a slow rate
of speed.      Likewise, in Romero, 328 F. App’x at 301, we held that Sec-
tion 2L1.1(b)(6) applied against a defendant who had driven her pickup a rela-
tively short distance at slow speeds. To trigger the enhancement, a defendant
who drives a truck with unrestrained aliens lying in the bed does not need to
be driving at high speeds for long periods. Any distance or elapsed time can be
viewed, in the context of all the facts, as putting those persons at “substantial
risk of death or serious bodily injury.” 4


       3  United States v. Magallan-Rodriguez, 530 F. App’x 318, 322 (5th Cir. 2013) (per
curiam); United States v. Nino, 482 F. App’x 920, 922 (5th Cir. 2012) (per curiam); United
States v. Castro Mendoza, 412 F. App’x 708, 709 (5th Cir. 2011) (per curiam); Romero, 328 F.
App’x at 301; United States v. Diaz-Resendez, 263 F. App’x 425, 428 (5th Cir. 2008); Guevara-
Hernandez, 251 F. App’x at 860; United States v. Teran, 236 F. App’x 82, 84 (5th Cir. 2007)
(per curiam); Angeles-Mendoza, 407 F.3d at 751; United States v. Garza, 97 F. App’x 487, 488
(5th Cir. 2004) (per curiam); Cuyler, 298 F.3d at 390–91.
        Once this court did hold that the Section 2L1.1(b)(6) enhancement should not apply
to a defendant who transported unrestrained aliens in the back of a pickup. But in that case,
the truck’s bed was covered by a camper shell, which would have prevented the aliens from
being thrown out of the truck in an accident. United States v. Pineda-Jimenez, 212 F. App’x
369, 373 (5th Cir. 2007). In United States v. Trujillo-Reyes, 318 F. App’x 286, 288 (5th Cir.
2009) (per curiam), however, we determined that a defendant who drove a pickup at high
speeds over a long distance with unrestrained illegal aliens in the bed was subject to the
enhancement, even though the truck bed was covered by a camper shell.
        Regardless of those decisions, the bed of the truck Maldonado-Ochoa was driving was
covered with a tarp, not a camper shell. Covering a truck bed with a tarp does not protect
the aliens who are lying underneath it. Angeles-Mendoza, 407 F.3d at 751 n.16.
       4   Maldonado-Ochoa also claims that because of the brevity of his trip, he did not
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                                       No. 15-40424
       The only real difference between Maldonado-Ochoa and the defendants
in previous cases involving unrestrained illegal aliens lying in pickup truck
beds is that Maldonado-Ochoa happened to get caught immediately. Had the
agents not been there, it is plausible that he would have driven the truck a
considerable distance. We know that at least two of the aliens were bound for
Houston, 345 miles to the north. It is possible that Maldonado-Ochoa would
have driven only part of the way before arriving at a stash house or some other
rendezvous point. But it is a stretch to claim, as defense counsel did at sen-
tencing, that Maldonado-Ochoa “could have been . . . just going around the
block.”

       This court has consistently held that Section 2L1.1(b)(6) applies against
defendants who have transported unrestrained aliens in a pickup truck bed
that was not covered with a camper shell. Although avoiding the temptation
to impose a bright-line rule, and cognizant that we look to the specific facts of
each case involving this enhancement, see note 2, supra, we recognize no blan-
ket exception for defendants who are caught early in their journeys. The high
risk of serious injury or death remains.

       AFFIRMED.




“transport” the aliens “in any meaningful sense.” We reject that notion. Maldonado-Ochoa
pleaded guilty of a crime that includes “transport or move” in its definition. 8 U.S.C.
§ 1324(a)(1)(A)(ii). He told the district court that he agreed with the plea agreement’s recital
of facts, which says that he “transported or moved” at least one illegal alien. “Move” and
“transport” are synonyms, and there is no reason to believe that “transport” should have a
special, more restrictive meaning in this context. See, e.g., Gloucester Ferry Co. v. Pennsyl-
vania, 114 U.S. 196, 203 (1885) (“Transportation implies the taking up of persons or property
at some point and putting them down at another.”); BLACK’S LAW DICTIONARY 1729 (10th ed.
2014) (defining “transportation” as “movement of goods or persons from one place to another
by a carrier.”); 18 OXFORD ENGLISH DICTIONARY 423 (2d ed. 1989) (defining “transport” as
“[t]o carry, convey, or remove from one place or person to another; to convey across.”).
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                                  No. 15-40424
JAMES L. DENNIS, Circuit Judge, dissenting:
      The majority opinion holds that an offense that consisted of stopping a
pickup truck, loading undocumented immigrants into the cab and bed of the
truck, and “attempting to reverse” before stopping the truck involved
“intentionally or recklessly creating a substantial risk of death or serious
bodily injury to another person.” The fact that convinces the majority that risk
of serious injury or death was present in this case is the fact that, had he not
been caught by law enforcement, Maldonado-Ochoa could have driven the
truck “a considerable distance.” Slip op. at 7. Because the majority opinion
fails to consider whether a substantial risk was actually created in the course
of Maldonado-Ochoa’s particular offense, as our precedent requires, I
respectfully dissent.
      Fifth Circuit precedent provides that “[t]he contours of [the § 2L1.1]
sentencing enhancement depend on a careful application of the guidelines on
a case-specific basis” and its application “requires a fact-specific inquiry.”
United States v. Zuniga-Amezquita, 468 F.3d 886, 888-89 (5th Cir. 2006). We
have explained that “a substantial risk requires a strong probability that the
event . . . will occur.” Rodriguez v. Holder, 705 F.3d 207, 213 (5th Cir. 2013);
see also United States v. Lackey, 617 F. App’x 310, 314 (5th Cir. 2015) (citing
Rodriquez in the context of sentencing enhancements). In United States v.
Cuyler, 298 F.3d 387, 391 (5th Cir. 2002), the first Fifth Circuit case to consider
the application of § 2L1.1 to the transportation of persons in the bed of a
pickup, we clarified that “the issue is whether this particular offense
‘intentionally or recklessly creat[ed] a substantial risk of death or serious
bodily injury to another person.’” (Emphasis added, alteration in original).
      The relevant caselaw demonstrates how a fact-specific analysis should
unfold. In Cuyler, we considered the application of the § 2L1.1 enhancement
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                                      No. 15-40424
to an offense that involved driving undocumented immigrants on the highway
in the bed of a pickup. Id. at 388-89. Before concluding that the enhancement
properly applies “to the smuggling of aliens in the bed of a pickup truck while
driving on the highway,” we observed that “[a]liens who are unrestrained
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.” Id.
at 391. In other words, we analyzed the risks inherent in the activity actually
engaged in to determine whether the offense “involved intentionally or
recklessly creating a substantial risk of death or serious bodily injury to
another person.” § 2L1.1(b)(6).
       In United States v. Angeles-Mendoza, 407 F.3d 742, 751 (5th Cir. 2005),
we stated that Cuyler “dictates that the adjustment is appropriate where the
smuggled aliens are transported in the bed of a pickup truck.” However, a
closer review of that opinion reveals that we did not simply apply a per se rule.
Rather, we examined the facts of the offense and concluded, “Over the long
distances that the aliens were transported in this operation, there existed the
similar, substantial risk that the aliens might ‘be thrown from the bed of the
pickup in the event of an accident or other driving maneuver of the sort.’” Id.
at 751 n.17 (quoting Cuyler, 298 F.3d at 391). And in United States v. Mendoza,
412 F. App’x 708, 709 (5th Cir. 2011), we held that the appellant “ha[d] not
shown his case to be distinguishable from Cuyler” because, “[a]lthough [he]
traveled only a short distance 1 with the unsecured aliens, the potential for an
accident still existed.”



       1 It is not clear exactly how far the defendant traveled in Mendoza. However, the
PSR’s description of the route taken by the defendant reveals that the distance travelled was
more than de minimis. See PRS at 3-4, United States v. Mendoza, No. 2:09-cr-00737-AM (W.
D. Tex., 2010).
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                                  No. 15-40424
      In this case, the potential for an accident did not exist. The Government
has the burden of proving by a preponderance of the evidence the facts
necessary to support the § 2L1.1(b)(6) enhancement. United States v.
Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). Yet while the Government’s brief
states that “the risk of harm to an unsecured person travelling any distance in
the bed of a pickup truck is inherent due to the possibility of an accident or
other injury,” the Government did not attempt to show that a substantial risk
of death or serious bodily injury is created when a vehicle merely “attempt[s]
to reverse.” The majority opinion’s theory that, “[h]ad the agents not been
there, [Maldonado-Ochoa] would have driven the truck a considerable
distance,” slip op. at 7, is irrelevant: our precedent requires us to look at the
offense as it was committed, not as it might have been. See Cuyler, 298 F.3d
at 391.
      As explained above, “a substantial risk requires a strong probability that
the event . . . will occur.” Rodriguez, 705 F.3d at 213 (emphasis added). The
undisputed factual record states that the truck “appeared to be attempting to
reverse before it stopped,” but that “as the vehicle started to move, agents
activated emergency lights and were able to stop the vehicle.” Such minimal
movement simply does not create a “strong probability” that death or serious
bodily injury will result.
      Maldonado-Ochoa’s actual offense did not involve intentionally or
recklessly creating a substantial risk of death or serious bodily injury to
another person. In direct contradiction of our precedent, the majority opinion
reaches a contrary result by imagining how a risk could have manifested under
different circumstances rather than by looking at the facts of the offense itself.
I respectfully dissent.


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