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

                                                 FILED
                                                                           March 30, 2009
                                       No. 07-11107
                                                                       Charles R. Fulbruge III
                                                                               Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

JULIO TRUJILLO-REYES,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 7:07-CR-010




Before SMITH, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

       Julio Trujillo-Reyes pleaded guilty of transporting illegal aliens and of har-
boring illegal aliens. At sentencing, the district court adopted the mostly-undis-
puted facts in the presentence report (“PSR”). In summary, Trujillo-Reyes trans-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                        No. 07-11107

ported fourteen illegal aliens over 900 miles, from Phoenix, Arizona, to Wil-
barger County, Texas. Ten spent the entire journey in the bed of his pickup
truck, which was covered by a camper shell. The bed did not have seatbelts, and
the back of the camper shell could not be opened easily from the inside.1 When
he was stopped, Trujillo-Reyes was traveling 88 miles per hour on a road with
a 70 mile-per-hour speed limit.
       Based on those facts, the district court determined that Trujillo-Reyes
qualified for a sentencing enhancement, because he had “intentionally or reck-
lessly creating a substantial risk of death or serious bodily injury.” U.S.S.G.
§ 2L1.1(b)(6).2 Trujillo-Reyes appeals that enhancement.
       We review the district court’s interpretation and application of the sen-
tencing guidelines de novo and its factual findings for clear error. United States
v. Zuniga-Amezquita, 468 F.3d 886, 888 (5th Cir. 2006). In United States v. Pin-
eda-Jimenez, 212 F. App’x 369 (5th Cir. 2007), we reversed a sentence applying
the enhancement under nearly identical factual circumstances. Importantly, we
said that “[t]he government provided insufficient support for the enhancement”
and noted that “[i]t is conceivable that in this case (or in other future cases) the
government can make a showing as to the specific dangers facing those who are
riding in the bed of a truck covered by a camper shell . . . .” Id. at 373. Here, the
government attempted to make such a showing, so we must determine whether


       1
         Trujillo-Reyes disagrees with the PSR’s conclusion that the camper shell could not be
opened easily from the inside. The district court, however, may adopt the PSR’s factual find-
ings “without further inquiry if the defendant fails to demonstrate by competent rebuttal evi-
dence that the information is materially untrue, inaccurate or unreliable.” United States v.
Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (internal quotation marks omitted). “The defen-
dant bears the burden of showing that the information in the PSR relied on by the district
court is materially untrue.” United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995). Trujil-
lo-Reyes has not provided competent rebuttal evidence.
       2
         Without the enhancement, Trujillo-Reyes’s offense level would have been 12, resulting
in a guidelines sentence of 15-21 months’ imprisonment. With the enhancement, the offense
level was 15, and the recommended guidelines sentence was 24-30 months.

                                               2
                                       No. 07-11107

the specific danger justified application of the enhancement.
       In United States v. Cuyler, 298 F.3d 387 (5th Cir. 2002), we affirmed the
enhancement where the aliens had been riding in the uncovered bed of a pickup.
We noted that “[a]liens who are unrestrained easily can be thrown from the bed
of the pickup in the event of an accident or other driving maneuver of the sort
that is unavoidable in highway driving.” Id. at 391. Later, in United States v.
Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005), we reversed the enhancement
where aliens were transported unrestrained in the cargo area of a minivan, rea-
soning that “[t]he only dangers . . . associated with riding in the cargo area of the
minivan are generally the same dangers that arise from an individual not wear-
ing a seatbelt in a moving vehicle.” Finally, in United States v. Zuniga-Amezqui-
ta, 468 F.3d 886 (5th Cir. 2006), we affirmed the enhancement where aliens were
transported unrestrained in the cargo area of a van surrounded by boxes. We
outlined five factors to consider when applying the enhancement—“the availabil-
ity of oxygen, exposure to temperature extremes, the aliens’ ability to communi-
cate with the driver of the vehicle, their ability to exit the vehicle quickly, and
the danger to them if an accident occurs”—and distinguished Solis-Garcia on the
ground that the boxes made it difficult to exit the vehicle and created danger in
case of an accident, because they “could fly around and strike or land on top of
the aliens.” Id. at 889-90.3
       The enhancement was appropriate here. To begin, the two aggravating
factors described in Zuniga-Amezquita are present here: The PSR adopted by
the district court determined both (1) that it would have been difficult for the ali-
ens to exit the vehicle quickly because the camper shell did not open easily from
the inside and (2) that “if there had been an automobile accident, there likely
would have [been] multiple injuries to the occupants of the camper shell as none

       3
        We stated that the five listed factors were “not exhaustive, and future factual situa-
tions may present additional factors.” Zuniga-Amezquita, 468 F.3d at 889 n.4.

                                              3
                                     No. 07-11107

were restrained and also based on their close proximity to each other.”
      The government further points out that, unlike aliens in the cargo area of
a van, aliens in the bed of a pickup truck are afforded neither the safety features
nor climate control of the vehicle’s passenger compartment. And the inherent
risks of traveling in a truck bed were compounded by the fact that Trujillo-Reyes
transported the aliens a long distance (over 900 miles) and drove dangerously
(greatly exceeding the speed limit). Given those aggravating circumstances, the
district court did not err in concluding that Trujillo-Reyes recklessly created a
substantial risk of bodily injury.
      AFFIRMED.




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