United States v. Johnson

Case: 21-40713     Document: 00516246926          Page: 1    Date Filed: 03/21/2022




              United States Court of Appeals
                   for the Fifth Circuit
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      March 21, 2022
                                   No. 21-40713                        Lyle W. Cayce
                                                                            Clerk

   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Franklin Johnson, Jr.,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:21-CR-244-1


   Before Jolly, Willett, and Engelhardt, Circuit Judges.
   Per Curiam:*
          Franklin Johnson, Jr., pleaded guilty to conspiring to transport and
   transporting unlawful aliens within the United States for the purpose of
   commercial advantage and private financial gain. See 8 U.S.C.
   § 1324(a)(1)(A)(ii), (A)(v)(I), (B)(i). Johnson was arrested following a
   border-patrol checkpoint inspection. During the inspection, agents


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40713      Document: 00516246926            Page: 2    Date Filed: 03/21/2022




                                      No. 21-40713


   discovered that Johnson was transporting 96 undocumented aliens. One of
   those aliens was concealed under some luggage in Johnson’s cab. The other
   ninety-five were hidden inside Johnson’s trailer. The district court sentenced
   Johnson at the bottom of the advisory guidelines range to 46 months of
   imprisonment and three years of supervised release.
          In his sole argument on appeal, Johnson argues for the first time that
   the district court plainly erred by applying a two-level enhancement under
   U.S.S.G. § 2L1.1(b)(6) because there was not sufficient evidence or a
   plausible basis on which the enhancement could be applied. Because Johnson
   did not object to the district court’s application of § 2L1.1(b)(6), his
   challenge is reviewed for plain error. See, e.g., United States v. Broussard, 669
   F.3d 537, 546 (5th Cir. 2012). To prevail on plain-error review, Johnson must
   identify (1) a forfeited error (2) that is clear or obvious, rather than subject to
   reasonable dispute, and (3) that affects his substantial rights. See Puckett v.
   United States, 556 U.S. 129, 135 (2009). If he satisfies the first three
   requirements, we may remedy the error. Still, we should do so only if the
   error “seriously affect[s] the fairness, integrity or public reputation of judicial
   proceedings.” Id. (internal quotation marks and citation omitted).
          Section 2L1.1(b)(6) provides for an increase in the defendant’s base
   offense level for smuggling, transporting, or harboring an unlawful alien—in
   this case, an increase of two levels—if “the offense involved intentionally or
   recklessly creating a substantial risk of death or serious bodily injury to
   another person.” § 2L1.1(b)(6). In support of the enhancement, the
   presentence report stated that Johnson’s trailer was not designed to transport
   passengers, let alone ninety-five of them; that the aliens inside Johnson’s
   trailer lacked seatbelts; that they could not communicate with Johnson; that
   they would not have been able to extricate themselves from the trailer after
   an accident; and that there was “no free flow of air” in the trailer. Johnson




                                           2
Case: 21-40713     Document: 00516246926          Page: 3   Date Filed: 03/21/2022




                                   No. 21-40713


   neither rebutted those findings, which the district court adopted, nor
   presented any evidence relevant to the enhancement.
          Under the circumstances, the district court’s decision to apply the
   § 2L1.1(b)(6) enhancement is at most subject to reasonable dispute, so any
   error is not clear or obvious. See Puckett, 556 U.S. at 135; United States v.
   Garza, 587 F.3d 304, 310–11 (5th Cir. 2009) (per curiam). Accordingly, we
   AFFIRM the district court’s judgment.




                                         3