     Case: 10-50428 Document: 00511386221 Page: 1 Date Filed: 02/17/2011




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

                                                 FILED
                                                                          February 17, 2011
                                     No. 10-50428
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALBERTO CASTRO MENDOZA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-737-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Alberto Castro Mendoza appeals the 27-month sentence imposed by the
district court following his conviction for transporting illegal aliens for financial
gain. He first challenges the district court’s determination that because the
offense involved between 6 and 24 aliens, a three-level increase in offense level
under U.S.S.G. § 2L1.1(b)(2)(A) was warranted. We review the district court’s
finding for clear error. See United States v. Rodriguez, 602 F.3d 346, 362 (5th
Cir. 2010). When, as here, the factual finding is based on the district court’s

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50428 Document: 00511386221 Page: 2 Date Filed: 02/17/2011

                                   No. 10-50428

opportunity to judge the credibility of a witness, this court will find clear error
only if it is left with the definite and firm conviction that a mistake has been
committed. See United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).
      The district court’s determination that Mendoza transported 10 aliens in
his pickup truck was based on a credibility finding in favor of the material
witness over that of Mendoza. Because Mendoza has not shown that a mistake
was committed, no clear error has been shown. See Trujillo, 502 F.3d at 356.
      Mendoza also challenges the district court’s application of § 2L1.1(b)(6),
which states that: “If the offense involved intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another person, increase by
2 levels, but if the resulting offense level is less than level 18, increase to level
18.” The court’s interpretation of § 2L1.1(b)(6) is reviewed de novo and its
factual findings are reviewed for clear error. See United States v. Solis-Garcia,
420 F.3d 511, 514 (5th Cir. 2005).
      In United States Cuyler, 298 F.3d 387, 391 (5th Cir. 2002), this court
determined that a defendant who transported four aliens in the bed of a pickup
truck created a substantial risk of death or serious bodily injury. The court
reasoned that unsecured aliens riding in the bed of a pickup could easily be
injured in the event of “an accident or other driving maneuver of the sort that
is unavoidable in highway driving.” Id. Mendoza has not shown his case to be
distinguishable from Cuyler. Although Mendoza traveled only a short distance
with the unsecured aliens, the potential for an accident still existed.
Accordingly, the district court did not err in determining that Mendoza’s conduct
created a substantial risk of death or serious bodily injury. See Cuyler, 298 F.3d
at 391.
      AFFIRMED.




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