United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2007
Charles R. Fulbruge III
Clerk
No. 05-40272
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIS ANN ROGERS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-866-ALL
-------------------
Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Phyllis Ann Rogers appeals the concurrent 27-month sentences
she received following a jury trial on two counts of transporting
undocumented aliens in violation of 8 U.S.C. § 1324. The
district court imposed a sentence enhancement under U.S.S.G.
§ 2L1.1(b)(5) on the basis that Rogers transported the four
individuals in the rear cargo area of a minivan, covered in
newspaper and a layer of wrought iron and ceramic goods. Rogers
asserts that the enhancement was unwarranted because the aliens
were not exposed to the elements, had adequate oxygen, were able
*
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this opinion should not be published and is not precedent except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. 05-40272
-2-
to communicate with her, and easily could have extricated
themselves in an emergency. The Government asserts that, during
an accident or other sharp maneuver, the aliens could have been
injured or killed by flying wrought iron, trapped by the debris,
or overlooked by emergency personnel. The Government also notes
that the men were sweating profusely when the covering newspaper
was removed.
We review the district court’s application of the Guidelines
de novo and the court’s factual findings for clear error. United
States v. Villanueva, 408 F.3d 193, 202, 203 n.9 (5th Cir.),
cert. denied, 126 S. Ct. 268 (2005). With respect to the
district court’s factual findings, we find no error. The court
relied upon the Presentence Report (PSR) in determining that the
enhancement was warranted. The facts contained in the PSR are
supported by the evidence in the record. Border patrol agents
testified during Rogers’s trial that the men were lying side by
side, surrounded by newspaper, and covered by “a bunch of”
wrought iron and ceramic items that limited their movement. The
agents testified that the men were “sweating a lot” when the
newspaper was removed. In addition, the aliens testified by
deposition that boxes were placed on top of them.
The enhancement under § 2L1.1(b)(5) is warranted where “the
offense involved intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another
person.” In United States v. Zuniga-Amezquita, 468 F.3d 886, 890
No. 05-40272
-3-
(5th Cir. 2006), we held that transporting aliens in the cargo
area of a van with boxes and luggage piled high around them
warranted the enhancement because the aliens’ ability to exit the
vehicle was impeded and the items could have struck them in an
accident. Id. We listed several non-exclusive factors to
consider in determining whether the enhancement is proper:
(1) whether oxygen was available to the individuals being
transported; (2) their exposure to extreme temperatures;
(3) their ability to communicate with the driver; (4) their
ability to exit the vehicle quickly; and (5) the danger to them
if an accident were to occur. Id. at 889.
The § 2L1.1(b)(5) enhancement was proper in this case. The
aliens were covered in stifling newspaper, and their movements
were restricted by the heavy iron and ceramics, which could have
become dangerous projectiles during an accident. Moreover, the
record shows that the rear door to the minivan was inoperable,
making a quick exit more difficult. See Zuniga-Amezquita, 468
F.3d at 890.
The judgment of the district court is AFFIRMED.