United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 31, 2007
Charles R. Fulbruge III
Clerk
No. 05-41661
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODRICK SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:05-CR-1040)
Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Having pleaded guilty, Rodrick Smith challenges his 18-month
sentence for transporting an alien, in violation of 8 U.S.C. §§
1324(a)(1)(A)(ii), (a)(1)(B)(i). At issue is whether the district
court erred in imposing an enhancement pursuant to advisory
Guidelines § 2L1.1(b)(5) (the enhancement) (applicable “[i]f the
offense involved intentionally or recklessly creating a substantial
risk of death or serious bodily injury to another person”).
AFFIRMED.
*
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this opinion should not be published and is not precedent except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.
I.
Smith, a commercial tractor-trailer driver, was stopped in
April 2005 by Border Patrol Agents at a highway border-patrol
checkpoint north of Laredo, Texas. After a canine alerted to the
presence of concealed contraband or persons in the tractor’s cab,
the Agents discovered five undocumented aliens concealed in the
cab’s sleeper compartment. Three of them were concealed in storage
compartments located underneath the sleeper compartment’s bed
(compartments).
At sentencing, the district court overruled Smith’s objection
to the enhancement, which had been recommended by the presentence
investigation report. In doing so, the district court relied on
the Agents’ photographs of the three aliens concealed in the
compartments and found, inter alia: the aliens were “scrunched up”
in them, which were “clearly meant for nothing but storage”; “if
you have some sort of accident [that] ... causes [the top of the
compartments] to be difficult to lift up, [the aliens] are going to
be trapped”; and the aliens could not, while in the compartments,
see their surroundings to take precautions in case of an accident.
The enhancement, coupled with an acceptance-of-responsibility
adjustment, resulted in an advisory Guidelines sentencing range of
18-24 months imprisonment.
2
II.
Notwithstanding United States v. Booker, 543 U.S. 220 (2005)
(rendering Guidelines advisory), a district court must still
properly determine the Guidelines range as part of the sentencing
process. E.g., United States v. Simmons, 470 F.3d 1115, 1128-29
(5th Cir. 2006), petition for cert. filed (U.S. 16 Feb. 2007) (No.
06-9562). In that regard, its interpretation and application of
the Guidelines are reviewed de novo; its factual findings, only for
clear error. E.g., id. at 1129. “A factual finding is not clearly
erroneous if it is plausible in [the] light of the record read as
a whole.” United States v. Villanueva, 408 F.3d 193, 203 (5th
Cir.), cert. denied, 126 S. Ct. 268 (2005).
Our court has recognized five non-exclusive factors to be
considered when applying the § 2L1.1(b)(5) enhancement, which
include: an alien’s ability to exit the vehicle quickly; and the
danger to him in the event of an accident. See United States v.
Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). As discussed
supra, the district court relied on photographs, the accuracy of
which Smith does not dispute, to make findings regarding these
factors. Smith does not show these findings are clearly erroneous.
Accordingly, the enhancement was not erroneous. See id. at 890;
see also United States v. Rodriguez-Mesa, 443 F.3d 397, 403 (5th
Cir. 2006) (enhancement not erroneous where district court relied
3
on photographs indicating “it would have been difficult to
extricate [the alien]”).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
4