                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                       REVISED June 11, 2007
                                                                June 7, 2007
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk


                           No. 05-40895
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                          CLIFTON TERAN,

                                                 Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:04-CR-722-6


Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.

PER CURIAM:*

          Clifton Teran appeals a non-Guidelines statutory maximum

sentence imposed by the district court following his guilty plea

conviction for conspiracy to bring undocumented aliens into the

United States for private financial gain, in violation of 8 U.S.C.

§ 1324(a)(2)(B)(ii) and (a)(1)(A)(v)(I).    Teran challenges several

sentencing enhancements used to determine his offense level and



     *
      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this opinion should not be published and is not precedent except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.
also   argues   that    his    sentence      at   the   statutory    maximum   was

unreasonable.    We affirm.

            Teran’s challenges to the correctness of the court’s

guidelines calculation may be readily disposed of.                   First, Teran

contends that the district court erroneously applied an enhancement

under U.S.S.G. § 2L1.1(b)(2)(C) for more than one hundred aliens

being involved in the offense because the court included aliens

that were trafficked prior to his joining the conspiracy.                       The

presentence report (PSR) shows, however, that at least one hundred

one aliens were actually apprehended during the time period alleged

in   the   indictment.        Further,    ledgers       found   in   stash   houses

referenced one hundred eighty-eight aliens who were harbored during

that time frame.       There is no clear error by the district court.

See United States v. Angeles-Mendoza, 407 F.3d 742, 750 (5th Cir.

2005); see also § 2L1.1(b)(2)(C).

            Teran also argues that the district court erroneously

applied an enhancement under § 2L1.1(b)(5) for intentionally or

recklessly creating a substantial risk of death or serious bodily

injury to another person.          The PSR and testimony at sentencing

showed, however, that at least sixty-nine aliens were kept in

severely overcrowded conditions in two rear bedrooms of a stash

house without running water or air conditioning, allowed to use

restroom facilities and given water only once per day from a hose

extended from a nearby residence, and threatened and beaten for

making noise.    The evidence at sentencing also showed that many of

                                         2
the aliens had been transported to the stash houses in the beds of

pickup trucks.    The severely overcrowded conditions and dangerous

transportation of the aliens created a substantial risk of serious

bodily injury, and the district court did not err.    See Angeles-

Mendoza, 407 F.3d at 750-51; United States v. Cuyler, 298 F.3d 387,

390-91 (5th Cir. 2002); § 2L1.1, comment. (n.6).

          Teran next argues that he should not have received an

enhancement under § 2L1.1(b)(6) for bodily injury from a sexual

assault because there was no evidence that any women were sexually

assaulted.   The district court relied on facts in the PSR and

testimony at sentencing from an investigating agent detailing both

physical and sexual abuse of the aliens.    Material witnesses and

codefendants provided statements that support the district court’s

finding that sexual abuse occurred.

          Teran also argues that the district court erroneously

applied an enhancement for being an organizer or leader.      Teran

admitted at his rearraignment that he recruited at least one

codefendant to act in the conspiracy.   Further, evidence from the

investigating agent and the PSR also show that Teran recruited and

supervised other participants, arranged for stash houses, made and

received financial payments for the organization, and claimed a

larger share of the proceeds from the criminal venture.   There is

no error in the organizer or leader enhancement.   See § 3B1.1(a) &

comment. (n.4).



                                  3
          Overarching his guidelines calculation challenges, Teran

contends that his one hundred twenty-month sentence, equal to the

statutory maximum and exceeding the advisory guideline range of

seventy-eight to ninety-seven months, was unreasonable. He asserts

that the district court failed to thoroughly articulate its reasons

for the sentence, failed to account for a factor that should have

received significant weight (i.e., that he had zero criminal

history points),   and     committed       a   clear   error   of   judgment   in

balancing the sentencing factors.

          The district court may impose a non-guideline sentence

that is higher or lower than the relevant Guidelines provide.

United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).              Because

the court here   did not indicate that it was upwardly departing or

reference a Guidelines upward departure provision, this court

treats the sentence as a non-guidelines sentence.                    See United

States v. Armendariz, 451 F.3d 352, 358 n.5 (5th Cir. 2006).               When

a district court deviates from the Guidelines, this court conducts

its reasonableness review “through an abuse-of-discretion lens,

paying particular attention to the specific reasons” for the

deviation.   Id. at 358.

          Before imposing a non-guideline sentence, a district

court must consider the Guidelines and “should utilize the appro-

priate Guideline range as a frame of reference.”               Smith, 440 F.3d

at 707 (internal quotation marks and citation omitted).                  “[T]he

district court must more thoroughly articulate its reasons when it

                                       4
imposes a non-Guideline sentence than when it imposes a sentence

under authority of the Sentencing Guidelines.”               Id.   The district

court’s reasons must be fact specific and consistent with the

§   3553(a)    factors;1    however,    a    checklist   recitation     of   the

§ 3553(a) factors is not necessary for a non-guideline sentence to

be reasonable.      Id.    “A non-Guideline sentence unreasonably fails

to reflect the statutory sentencing factors where it (1) does not

account for a factor that should have received significant weight,

(2) gives significant weight to an irrelevant or improper factor,

or (3) represents a clear error of judgment in balancing the

sentencing factors.”       Id. at 708.

              As   discussed   above,       the   district    court    properly

calculated the guideline range.             The court also expressly noted

that the guidelines are advisory, and it used the range as a frame

of reference.      See Smith, 440 F.3d at 707.       The court’s discussion

of its deviation from the Guidelines was brief but adequate to

explain its reasoning. The court noted the “extreme nature of this


      1
      The § 3553(a) factors include: (1) the nature and
circumstances of the offense and the history and characteristics
of the defendant; (2) the need for the sentence to (A) reflect
the seriousness of the offense, promote respect for the law, and
provide just punishment for the offense, (B) afford adequate
deterrence to criminal conduct, (C) protect the public from
further crimes, and (D) provide the defendant with needed medical
care or other correctional treatment; (3) the kinds of sentences
available; (4) the kinds of sentence and the sentencing range
established in the applicable guidelines; (5) any pertinent
policy statements; and (6) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct. See § 3553(a).

                                        5
crime” and “the impact it’s had on so many hundreds of victims.”

The court thus considered the nature and circumstances of the

offense and the need for the sentence to reflect the seriousness of

the conduct.   See § 3553(a)(1), (a)(2)(A).         The court also stated

“that this gentleman also has significant un-prosecuted conduct

because of his juvenile status.”         The PSR showed that Teran and his

family   members   had   been   apprehended    twenty-six   times   without

prosecution because of their juvenile status at the time.               The

district   court   explicitly    acknowledged     Teran’s   past    criminal

history and the need for the sentence to provide just punishment

and promote respect for the law.      See § 3553(a)(3); Smith, 440 F.3d

at 709 (court properly considered defendant’s criminal history and

juvenile convictions unaccounted for in the guideline sentence).

As further justification for its sentence, the district court

referred to the “pervasive nature of the crime,” and it expressly

referenced the § 3553(a) factors given “the Court’s desire . . . to

provide for adequate deterrence, protect the public from further

crimes, to reflect the seriousness of this offense and to promote

respect for the law and to provide just punishment.”          Finally, the

degree of the district court’s twenty-three-month deviation from

the maximum guideline range was not unreasonable.2          See Smith, 440

F.3d at 708 n.5, 709-10 (sentence at the statutory maximum of


     2
      Teran makes no argument that his sentence was unreasonable
because of an unwarranted sentence disparity among his
codefendants. See Blue brief, 39-41.

                                     6
sixty-month sentence, which was more than double the guidelines

range, was reasonable).

           Teran fails to show that the district court did not account

for    a    factor   that   should   have   received   great   weight,   gave

significant weight to an irrelevant factor, or committed a clear

error of judgment in balancing the sentencing factors.            See id. at

708.       Because the district court “committed no legal error in the

sentencing procedure . . . the sentence must be given great

deference.”       Id. at 710.

               For the foregoing reasons, the district court’s judgment

is AFFIRMED.




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