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

                                                FILED
                                                                 June 24, 2009
                                No. 08-11002
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RAFAEL BOCANEGRA-RODRIGUEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 5:08-CR-31-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Rafael Bocanegra-Rodriguez (Bocanegra) appeals following his guilty plea
conviction for transporting illegal aliens and aiding and abetting. He argues
that the district court reversibly erred when it adjusted his offense level under
U.S.S.G. § 3C1.2 and § 2L1.1(b)(6) because both adjustments were based on the
same uninterrupted course of conduct. He argues that the risk caused by the




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 08-11002

conditions in the van and that posed by the manner in which the van was driven
during flight cannot be evaluated without reference to one another.
      We review the district court’s application of the Guidelines de novo and its
findings of fact for clear error. United States v. Cuyler, 298 F.3d 387, 389 (5th
Cir. 2002).   A district court’s reasonable inferences from the facts also are
reviewed for clear error. United States v. De Jesus-Ojeda, 515 F.3d 434, 442 (5th
Cir. 2008).
      Double counting is prohibited under the Sentencing Guidelines only where
the guideline at issue expressly prohibits it. See United States v. Gaytan, 74
F.3d 545, 560 (5th Cir. 1996). In addressing whether multiple adjustments
constitute impermissible double counting, the focus should be “on the temporal
and spatial distinctiveness or separateness of the acts” in order to determine
whether the conduct involves “more than one culpable act.” United States v.
Gillyard, 261 F.3d 506, 511 (5th Cir. 2001).
      A defendant receives an adjustment under § 2L1.1(b)(6) if the offense
conduct recklessly creates a risk of serious bodily injury to another person. A
defendant receives an § 3C1.2 adjustment if his flight from a law enforcement
recklessly creates a serious risk of bodily injury to another person.      If the
conduct justifying the § 2L1.1(b)(6) adjustment is solely related to fleeing from
law enforcement, § 3C1.2 should not apply. See § 2L1.1, comment. (n.5). Thus,
where the § 2L1.1(b)(6) adjustment is based on conduct not solely related to
flight, the district court is not precluded from applying § 3C1.2.
      The overcrowded conditions in the van posed a danger of a substantial risk
of serious injury to the aliens and to the unsecured infant, even in the event of
an ordinary traffic accident not caused by Bocanegra’s subsequent reckless
flight. Thus, the risk caused by the overcrowding was distinct from the risk
posed by Bocanegra’s reckless driving during flight. Furthermore, in addition
to endangering his passengers, Bocanegra’s reckless driving created a risk of



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                                      No. 08-11002

danger to people besides the van passengers.1 Because Bocanegra’s conduct
involved “more than one culpable act,” the district court did not commit
impermissible double counting in adjusting Bocanegra’s offense level under both
§ 2L1.1(b)(6) and § 3C1.2. See Gillyard, 261 F.3d at 511.
       To the extent that Bocanegra’s argument may be construed as an implicit
challenge to the applicability of § 2B1.1(b)(6) made for the first time on appeal,
we perceive no plain error. See United States v. Baker, 538 F.3d 324, 332 (5th
Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). The district court did not plainly
err in determining that carrying 17 passengers in a van designed for 12
passengers created a risk of serious bodily injury. See United States v. Garza,
541 F.3d 290, 294 (5th Cir. 2008).
       AFFIRMED.




       1
         Bocanegra’s reply contends that this point was never made before the district court.
However, the PSR Addendum states: “Aside from endangering the passengers in an
overcrowded van, the defendant fled from law enforcement, creating a substantial risk of
serious bodily injury or death.”

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