     Case: 17-41153      Document: 00514572865         Page: 1    Date Filed: 07/26/2018




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

                                    No. 17-41153                                FILED
                                  Summary Calendar                          July 26, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS ALBERTO ZATARAIN-FAIRE, true name Carlos Alberto Zatarain-
Fraire,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:17-CR-369-1


Before DAVIS, HAYNES and GRAVES, Circuit Judges.
PER CURIAM: *
       Carlos Zatarain-Faire appeals the sentence imposed following his guilty
plea conviction of conspiracy to transport and move and attempt to transport
and move an alien unlawfully present in the United States by means of
transportation and otherwise and two counts of transporting and moving and
attempting to transport and move an alien unlawfully present in the United



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-41153     Document: 00514572865     Page: 2   Date Filed: 07/26/2018


                                  No. 17-41153

States by means of transportation and otherwise for the purposes of
commercial advantage and private financial gain. He argues that the district
court erroneously applied a two-level adjustment pursuant to U.S.S.G.
§ 2L1.1(b)(6).
      We review the district court’s application of § 2L1.1(b)(6) de novo. United
States v. Maldonado-Ochoa, 844 F.3d 534, 536 (5th Cir. 2016). This court
applies a deferential clear-error standard of review to the district court’s
factual findings supporting the adjustment. United States v. Rodriguez, 630
F.3d 377, 380 (5th Cir. 2012). A factual finding must be “plausible in light of
the record as a whole” and will be found clearly erroneous only if a review of
all the evidence leaves this court “with the definite and firm conviction that a
mistake has been committed.” Id.
      Section 2L1.1(b)(6) provides for a two-level increase in a defendant’s
offense level if the transporting offense involved “intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another person.”
§ 2L1.1(b)(6). “Transporting aliens in a manner that significantly hinders their
ability to exit the vehicle quickly creates a substantial risk of death or serious
bodily injury.” United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir.
2006).
      Here, the evidence supports the conclusion that the aliens’ ability to
quickly exit the tractor-trailer was hindered by the manner in which they were
being transported. In the event of an accident, the three aliens crammed into
the storage compartment would have had to extricate themselves from each
other and from the compartment by opening it from the inside, made more
difficult by another alien sitting on top of the compartment. The record also
indicates that the aliens in the compartment did not know that the
compartment could be opened from the inside.



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    Case: 17-41153   Document: 00514572865     Page: 3   Date Filed: 07/26/2018


                                No. 17-41153

     In light of the foregoing, the district court did not clearly err when it
applied the two-level § 2L1.1(b)(6) adjustment for intentionally or recklessly
creating a substantial risk of death or serious bodily injury to the aliens he
transported. Rodriguez, 630 F.3d at 380; Zuniga-Amezquita, 468 F.3d at 889.
Accordingly, the judgment of the district court is AFFIRMED.




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