Case: 21-50524 Document: 00516265056 Page: 1 Date Filed: 04/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 4, 2022
No. 21-50524
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Felipe Castelo-Palma,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-409-1
Before Dennis, Southwick, and Wilson, Circuit Judges.
James L. Dennis, Circuit Judge:
On the night of September 2, 2020, a Presidio County, Texas,
sheriff’s deputy pulled over a 2003 Ford Explorer because its license plate
light was out. The deputy identified the driver as Felipe Castelo-Palma.
Brayan Gonzales-Rivera, who would be charged as Castelo-Palma’s
codefendant, was in the passenger seat. After observing a total of nine people
in the Explorer, the deputy contacted United States Border Patrol, which
identified Castelo-Palma as a United States citizen and seven of the other
passengers as illegal aliens. Castelo-Palma was advised of his Miranda rights
and agreed to speak to the officers without an attorney present. See Miranda
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v. Arizona, 384 U.S. 436 (1966). Castelo-Palma told the agents that he had
been approached by the La Linea Drug Trafficking Organization, which
offered him between $700 and $800 per person to smuggle illegal aliens from
Mexico into the United States. Because Castelo-Palma did not have a
driver’s license, he contacted Gonzales-Rivera to join the scheme. Together,
they picked up three illegal aliens on September 1, and four more on the night
of September 2.
Castelo-Palma was charged with one count of transportation of illegal
aliens for financial gain. He pleaded guilty without the benefit of a plea
agreement. In the presentence report (PSR), the probation officer
recommended a total offense level of 17. This calculation included a three-
level enhancement under U.S.S.G. § 2L1.1(b)(6) for “intentionally or
recklessly creating a substantial risk of death or serious bodily injury to
another person”; in support of the enhancement, the probation officer cited
the fact that nine people were in the Explorer, which had a rated capacity of
seven passengers. His total offense level, combined with a criminal history
category of I, resulted in a guidelines imprisonment range of 24 to 30 months.
Castelo-Palma objected to the PSR’s § 2L1.1(b)(6) recommendation, arguing
that carrying two additional passengers in the Explorer did not create a
substantial risk of death or bodily injury, but the district court overruled the
objection. Ultimately, Castelo-Palma was sentenced to 24 months of
imprisonment and three years of supervised release. He now appeals to this
court.
I.
As a threshold matter, the parties disagree on the applicable standard
of review. This court reviews the district court’s interpretation and
application of the Guidelines de novo and its factual findings for clear error.
United States v. Barfield, 941 F.3d 757, 761 (5th Cir. 2019). Castelo-Palma
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asserts that his claim presents a purely legal question and should thus be
reviewed de novo. The government argues that Castelo-Palma’s objection
below goes to whether there were sufficient facts to show evidence of the
“substantial risk” required to apply the contended sentencing enhancement,
not whether it could be properly applied as a matter of law to a set of
uncontested facts, and thus that his argument should be reviewed for clear
error.
We review the factual findings a district court makes in support of its
decision to apply the § 2L1.1(b)(6) enhancement for clear error. United
States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011); see also United States v.
Garza, 587 F.3d 304, 310 (5th Cir. 2009). But whether undisputed facts
constitute reckless endangerment is a legal question reviewed de novo. See
United States v. Torres, 601 F.3d 303, 305 (5th Cir. 2010) (citing United States
v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005)).
Castelo-Palma contends that the government’s reliance on Rodriguez
and Garza is misplaced, as there is no factual dispute that the vehicle
contained nine passengers despite only being rated for seven. Rather, the
dispute is over whether, as a matter of law, the fact that the vehicle contained
nine passengers despite only being rated for seven was sufficient to apply this
enhancement. We agree. As we held in Torres, where a “[petitioner] does
not dispute the facts found by the district court, but rather contends the
district court erred in its interpretation of the guidelines and its application
of factual findings to the reckless endangerment enhancement,” our review
is de novo. 601 F.3d at 305.
II.
This court has identified five factors to consider when applying
§ 2L1.1(b)(6): “the availability of oxygen, exposure to temperature extremes,
the aliens’ ability to communicate with the driver of the vehicle, their ability
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to exit the vehicle quickly, and the danger to them if an accident occurs.”
United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). The
commentary to § 2L1.1(b) provides a non-exhaustive list of conduct the
enhancement applies to, including, inter alia, “transporting persons in the
trunk or engine compartment of a motor vehicle; carrying substantially more
passengers than the rated capacity of a motor vehicle or vessel; [and]
harboring persons in a crowded, dangerous, or inhumane condition[.]”
§ 2L1.1(b)(6) cmt. n.3. Applying § 2L1.1(b)(6) “requires a fact-specific
inquiry because the reckless endangerment enhancement is intended to apply
to a wide variety of conduct.” United States v. Mata, 624 F.3d 170, 174 (5th
Cir. 2010) (internal quotation marks and citations omitted). That is because
“a single, bright-line test is not necessarily appropriate for a guideline that
must be applied to a wide variety of factual settings[.]” Zuniga-Amezquita,
468 F.3d at 889. However, the Guidelines’ “words must be given some
restrictive meaning.” Solis-Garcia, 420 F.3d at 516.
The government does not argue that the passengers of Castelo-
Palma’s Explorer lacked oxygen, were exposed to extreme temperatures, or
were unable to communicate with the driver. However, it contends that the
two final factors—the ability of the passengers to exit the vehicle quickly and
the danger that they would be seriously injured in an accident— along with
the vehicle’s overcrowding, justify the enhancement.
A.
As to the fourth factor, the passengers’ ability to quickly exit the
vehicle, the government states that the configuration of the Explorer—which
had two seats in the front row, three in the second row, and two additional
seats in the third row—“demonstrates there was no easy exit from the
vehicle for the passengers overloaded in the second or third rows because exit
from the third row could only be accomplished with a drop-down seat on the
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right-hand side of second row.” Castelo-Palma contends that this argument
assumes facts about how the passengers were positioned inside the vehicle
that were neither in the record nor relied upon by the district court, and that
the government “also assumes without evidence that the rear tailgate hatch
would not be a viable egress for exit should the need arise.”
This court has affirmed applying the § 2L1.1(b)(6) enhancement “in
situations in which it would have been difficult for the alien to extricate
herself from the vehicle in the event of an emergency because the alien was
jammed into a compartment or wedged into a tight space[,]” as well as where
the aliens “were completely surrounded by boxes . . . that were too big . . . to
easily move.” Mata, 624 F.3d at 174. For example, in Garza, this court
upheld the district court’s application of § 2L1.1(b)(6) based upon the
defendant’s illegal transportation of two men who were on the floorboards,
partially under the back seat, and wedged between the front and back seats of
her pickup truck. 587 F.3d at 310–11. But we have also made clear that,
without any aggravating factors, “transporting aliens in the cargo area of a
van . . . does not justify the application” of § 2L1.1(b)(6).” Zuniga-
Amezquita, 468 F.3d at 889.
In Zuniga-Amezquita, we upheld the application of this enhancement,
because the record reflected that the back of the cargo van was tightly packed
with stacked boxes and luggage which prevented the aliens from moving or
accessing the van door. Id. But in addressing the aliens’ ability to exit the
vehicle quickly, we carefully distinguished caselaw holding that transporting
an alien in the hatchback area of a car does not warrant the application of the
enhancement where the hatch could easily open from the inside. Id. at 890;
see also Solis-Garcia, 420 F.3d at 516. In this case, the record does not show
that the aliens were crammed into a tight compartment, as in Garza, or that
they were blocked from exiting the vehicle by boxes or packages, as in Zuniga-
Amezquita. The record does not reflect, and the district court made no
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findings, as to how the aliens were positioned in the SUV, or how the seats in
the vehicle were configured. Conceivably, the back seats could have been
down “to create an open cargo area” similar to Zuniga-Amezquita. The
record also does not reflect whether the rear tailgate hatch of the Explorer
could have been used as a mode of egress. This dearth of facts beyond the
number of people being transported does not support the district court’s
holding that Castelo-Palma intentionally or recklessly created a substantial
risk of death or serious bodily injury to any other person.
B.
As to the fifth factor, the danger posed to the vehicle’s occupants if
there was a crash, the government argues that the fact the aliens were not
wearing seatbelts and that Castelo-Palma was apprehended at night justify
the application of this enhancement. But this court has held that the risk to
the passengers must “be greater than that of an ordinary passenger not
wearing a seatbelt in a moving vehicle[,]” Zuniga-Amezquita, 468 F.3d at
890, and that this enhancement “does not extend so far as to increase
punishment for offenders simply for transporting illegal aliens without
requiring them to wear seatbelts.” Rodriguez, 630 F.3d at 381 (quoting Solis-
Garcia, 420 F.3d at 516). Here, the record does not demonstrate that the risk
to the aliens was any greater than the risk to an ordinary passenger not
wearing a seatbelt. The government claims that an unpublished opinion,
United States v. Hernandez, 630 F. App’x 254, 257 (5th Cir. 2015),
demonstrates “that the attempt to transport aliens at night can, in and of
itself, create a substantial risk of serious injury to them.” But, in addition to
being unpublished, Hernandez is easily distinguishable: in that case, the
defendant had instructed the aliens whom he was transporting to flee from
law enforcement across a highway. Id. We thus reasoned that the fact that it
was nighttime was relevant to our consideration of whether the defendant’s
instruction constituted reckless endangerment because crossing an active
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highway in the dark is more dangerous than doing so in the light. Id. at 255,
257. Hernandez did not hold that an attempt to transport aliens at night per
se creates a substantial risk of serious injury to another person. This factor
thus also does not support the district court’s holding that Castelo-Palma
intentionally or recklessly created a substantial risk of death or serious bodily
injury to any other person.
III.
Notably, in listing the types of activities the § 2L1.1(b)(6) sentencing
enhancement applies to, the commentary to § 2L1.1(b) includes “carrying
substantially more passengers than the rated capacity of a motor vehicle or
vessel[.]” § 2L1.1(b)(6) cmt. n.3. (emphasis added). In Rodriguez, six
people—five aliens and the driver—were riding in a Ford Explorer with a
maximum capacity of five, with three of the aliens in the vehicle’s cargo area.
630 F.3d at 379, 382 n.24. In that case, this court found that the application
of the enhancement was not justified. We have affirmed reliance on
overcrowding to justify the application of this enhancement only where the
vehicle was carrying many more people beyond the vehicle’s capacity than at
issue in this case. See, e.g., United States v. Sanchez-Gaucin, 595 F. App’x
344, 345 (5th Cir. 2014) (affirming where a vehicle rated for 15 was carrying
34 occupants); United States v. Hernandez-Perez, 366 F. App’x 531, 532 (5th
Cir. 2010) (affirming where a vehicle rated for seven was carrying 15
passengers). Without other aggravating factors, nonsubstantial
overcrowding alone is not enough to justify application of § 2L1.1(b)(6)).
IV.
For the foregoing reasons, we VACATE Castelo-Palma’s sentence
and REMAND for resentencing consistent with this opinion.
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