                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   OCT 7 2002
                                      TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                               No. 02-1156
 v.                                                      (D.C. No. 01-CR-133-D)
                                                              (D. Colorado)
 JUAN VARGAS-HERRERA,

           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before SEYMOUR, HENRY and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Defendant Juan Vargas-Herrera appeals his sentence imposed after he pled guilty

to one count of transporting illegal aliens resulting in serious bodily injury (8 U.S.C.



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
§ 1324(a)(1)(A)(ii) and (a)(1)(B)(iii)). He contends the district court erred in enhancing

his sentence pursuant to U.S.S.G. § 2L1.1(b)(5). Because we conclude the district court

properly applied the sentencing guidelines, we affirm.

       In April 2001, Vargas-Herrera was driving a minivan containing thirteen illegal

aliens, in addition to himself, along an isolated stretch of Interstate 70 in Colorado.

Vargas-Herrera lost control of the minivan, causing it to roll over. Several passengers

were injured, including one who sustained a serious head injury and another who was

paralyzed. At the time of the accident, the passengers were sitting or lying on the floor of

the minivan because its rear seats and seatbelts had been removed. The rated maximum

passenger occupancy of the minivan was seven. In March 2002, Vargas-Herrera pled

guilty to one count of transporting illegal aliens resulting in serious bodily injury. At

sentencing, the district court enhanced his sentence in accordance with U.S.S.G.

§ 2L1.1(b)(5), and sentenced him to thirty-seven months' imprisonment.

       We review for clear error the district court's factual findings regarding sentencing

and review de novo its legal interpretation of the Sentencing Guidelines. United States v.

Maldonado-Acosta, 210 F.3d 1182, 1183 (10th Cir. 2000). Here, the district court

enhanced Vargas-Herrera's sentence pursuant to § 2L1.1(b)(5) based on the lack of rear

seats and seatbelts in the minivan and the dangerous conditions created by exceeding the

maximum rated passenger capacity. Under § 2L1.1(b)(5), a defendant's offense level is

increased “[i]f the offense involved intentionally or recklessly creating a substantial risk


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of death or serious bodily injury to another person.”

       Vargas-Herrera does not dispute the district court's factual findings, but argues that

the evidence did not support an enhancement under § 2L1.1(b)(5). This argument,

however, is meritless. The commentary to § 2L1.1 states that the “[r]eckless conduct to

which the adjustment from subsection (b)(5) applies includes a wide variety of conduct,”

including, “carrying substantially more passengers than the rated capacity of a motor

vehicle or vessel, or harboring persons in a crowded, dangerous, or inhumane condition.”

U.S.S.G. § 2L1.1, cmt. n.6 (2001). Here, it is undisputed that Vargas-Herrera was driving

a vehicle with substantially more passengers than the rated capacity of the vehicle, and

that the vehicle's rear seats and seatbelts had been removed. Based on this evidence, the

court did not err in enhancing his sentence pursuant to § 2L1.1(b)(5). See United States

v. Ramirez-Martinez, 273 F.3d 903, 916 (9th Cir. 2001); United States v. Rio-Baena, 247

F.3d 722, 723 (8th Cir. 2001); see also United States v. Jose-Gonzalez, 291 F.3d 697,

699-700, 708 (10th Cir. 2002) (affirming sentence enhancement under similar conditions

without questioning the district court's application of § 2L1.1(b)(5)).

       We AFFIRM Vargas-Herrera's sentence.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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