United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40528
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CELESTINO YANEZ-FLORES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:02-CR-377-2
--------------------
Before REAVLEY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Celestino Yanez-Flores (Yanez) appeals from his conviction
of conspiracy to transport aliens for private financial gain. He
contends, for the first time on appeal, that the district court
erred in light of United States v. Booker, 543 U.S. 220 (2005),
by relying on judicially made factual findings regarding his
offense level adjustment for recklessly creating a substantial
risk of death or serious bodily injury to the aliens that were
transported by the conspiracy of which he was a member. He
*
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this opinion should not be published and is not precedent except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. 05-40528
-2-
further contends that the district court erred by adjusting his
offense level for recklessly creating a substantial risk of death
or serious bodily injury.
The district court noted that the recommended sentence in
Yanez’s case was 37 months of imprisonment. The district court
chose a 41-month sentence because the scope of the conspiracy and
Yanez’s level of involvement warranted a sentence at the high end
of the guideline sentencing range. Yanez has not shown that the
district court would have reached a different result under an
advisory sentencing scheme and, therefore, has not demonstrated
reversible plain error. See United States v. Mares, 402 F.3d
520, 521 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Yanez bases his argument against the reckless endangerment
adjustment on the lack of evidence in the record showing that the
aliens transported in groups of up to 30 in the back of extended-
cab trucks were unrestrained. He argues that the district court
inferred from the fact that the aliens were transported in the
beds of trucks that the aliens were unrestrained, then inferred
that, because they were unrestrained, the aliens could easily be
thrown from the truck beds. Yanez objected on a different theory
in the district court; his reckless endangerment argument
therefore is reviewed for plain error. See United States v.
Sotelo, 97 F.3d 782, 793 (5th Cir. 1996).
“Questions of fact capable of resolution upon proper
objection at sentencing can never constitute plain error.”
No. 05-40528
-3-
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Whether
the aliens were restrained in the beds of the trucks is a factual
question that could have been resolved upon proper objection at
sentencing. Yanez cannot demonstrate plain error as to that
factual question. See id. Nor can Yanez demonstrate plain error
as to the question whether the district court erred by imposing
the reckless endangerment adjustment. See United States v.
Cuyler, 298 F.3d 387, 391 (5th Cir. 2002).
AFFIRMED.