Case: 14-40847 Document: 00513035957 Page: 1 Date Filed: 05/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40847 FILED
Summary Calendar May 8, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CESAR CARDONA-LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:14-CR-51
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Cesar Cardona-Lopez pleaded guilty to two counts of transportation of
an undocumented alien. He was sentenced to concurrent terms of 21 months
of imprisonment. He argues that the district court clearly erred in adjusting
his sentence for transporting aliens in a way that created a substantial risk of
death or serious bodily injury. Citing United States v. Solis-Garcia, 420 F.3d
511 (5th Cir. 2005), and United States v. Zuniga-Amezquita, 468 F.3d 886 (5th
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40847 Document: 00513035957 Page: 2 Date Filed: 05/08/2015
No. 14-40847
Cir. 2006), he argues that his passengers had access to oxygen, were protected
from the weather, could communicate with the driver, and could exit the
vehicle quickly. Because the danger posed if an accident occurred was no
greater than a passenger not wearing a seatbelt, Cardona-Lopez asserts, the
adjustment to his sentence was not warranted.
This court reviews the district court’s application of the Sentencing
Guidelines de novo and its findings of fact for clear error. United States v.
Cuyler, 298 F.3d 387, 389 (5th Cir. 2002). It is undisputed that Cardona-Lopez
was transporting 14 individuals in a vehicle rated to carry seven passengers
and that nine of his passengers were unrestrained in the cargo area of the
minivan. Unlike the defendant in Solis-Garcia, Cardona-Lopez was “carrying
substantially more passengers than the rated capacity of a motor vehicle.” See
U.S.S.G. § 2L1.1(b)(6), comment. (n.5). Moreover, Cardona-Lopez does not
dispute that he was speeding on a busy section of Highway 77 while
transporting the unrestrained passengers. In light of these additional
aggravating factors, the district court’s application of the § 2L1.1(b)(6)
adjustment was not erroneous.
AFFIRMED.
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