United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41603
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL PINEDA-GUILLEN,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(C-02-CR-201-1)
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ismael Pineda-Guillen appeals from his guilty-plea conviction
and sentence for transporting illegal aliens within the United
States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and
(a)(1)(B)(ii). He argues that the factual basis was insufficient
to establish the requisite mens rea element for his crime of
conviction, thereby rendering his guilty plea involuntary as a
*
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this opinion should not be published and is not precedent except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.
matter of constitutional law and constituting a violation of FED.
R. CRIM. P. 11(c)(1). As Pineda was driving a vehicle containing a
group of illegal aliens, of which he was a member, traveling from
Mexico to Houston, Texas, his transportation of those illegal
aliens was “in furtherance of the alien’s unlawful presence.”1
Regardless of the standard of review that we apply, Pineda’s
challenges to the voluntariness of his guilty plea fail because the
factual basis was sufficient to establish the requisite mens rea
element.
Pineda contends that the district court erred by failing to
grant him a three-level reduction under U.S.S.G. § 3B1.2 for having
a mitigating role in his offense of conviction. Pineda’s attempt
to minimize his role in the instant offense by alleging that his
role was insignificant in light of a larger conspiracy does not
warrant a reduction under U.S.S.G. § 3B1.2.2 He has therefore
failed to show that the district court’s refusal to grant him this
reduction constituted clear error.3
Pineda also argues that the district court erred by increasing
his sentence under U.S.S.G. § 2L1.1(b)(5) because his offense
involved intentionally or recklessly creating a substantial risk of
1
United States v. Merkt, 764 F.2d 266, 270-71 (5th Cir.
1985).
2
See United States v. Atanda, 60 F.3d 196, 199 (5th Cir.
1995).
3
See Burton v. United States, 237 F.3d 490, 503 (5th Cir.
2000).
2
death or serious bodily injury to the illegal aliens he
transported. In light of the evidence in the record, the district
court’s finding that Pineda was aware that illegal aliens were
being transported in the trunk of the vehicle he was driving was
not clearly erroneous.4 Based on this finding, application of
U.S.S.G. § 2L1.1(b)(5) was warranted.5
Accordingly, the district court’s judgment is AFFIRMED.
4
See United States v. Miranda, 248 F.3d 434, 446 (5th Cir.),
cert. denied, 534 U.S. 980 (2001).
5
See U.S.S.G. § 2L1.1, comment. (n.6).
3