United States v. Solis-Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 9, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-41439
_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VERONICA SOLIS-GARCIA,

Defendant - Appellant.

__________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas, Corpus Christi

_________________________________________________________________

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Veronica Solis-Garcia pleaded guilty to one count of

transporting an illegal alien and was sentenced to twenty-four

months in prison. The question presented in this appeal is whether

the district court, in sentencing Solis, erred in applying the

enhancement for “intentionally or recklessly creating a substantial

risk of death or serious bodily injury to another person” for

Solis’s transportation of seven illegal aliens in a minivan, four

of whom were lying side by side in the cargo area of the minivan.

UNITED STATES SENTENCING GUIDELINES MANUAL § 2L1.1(b)(5)(2004)(hereinafter

USSG).
 We hold that, without further aggravating factors, Solis’s

conduct in transporting seven aliens, only four of whom were lying

down in the cargo area of the minivan, does not constitute

“intentionally or recklessly creating a substantial risk of death

or serious bodily injury to another person.” Accordingly, Solis’s

sentence is VACATED, and we REMAND for re-sentencing in accordance

with this opinion.

I

A

The following facts are uncontested. On May 6, 2004, United

States Border Patrol agents near the Falfurrias checkpoint in Texas

saw a 1996 Dodge Caravan minivan drive past their location.

Because the van appeared to be heavily loaded, they followed it.

When the agents pulled alongside the van, they recognized the

occupant of the front passenger seat as an individual they had

recently apprehended as being illegally in the United States.

Solis was the driver of the minivan.

The agents pulled over the minivan, and discovered seven

illegal aliens inside (including the individual in the front

passenger seat). The rear seat of the minivan had been removed,

and four aliens were lying side by side in the cargo area of the

van. The other three aliens were seated in the bucket seats of the

minivan, one in the front passenger seat and two in the middle row

of seats. They were bound for Houston.

2
 B

Solis was charged on May 26, 2004 with two counts of

transporting an illegal alien within the United States, and with

aiding and abetting. Without a written agreement, Solis pleaded

guilty to one of those two counts.

In the Presentence Report (“PSR”), the Probation Officer made

the following sentencing recommendations: The base offense level

was 12, USSG § 2L1.1(a)(2); three points were to be added because

Solis transported seven illegal aliens, USSG § 2L.1(b)(2)(A); two

points were to be added because Solis obstructed justice by making

false statements to the court regarding relevant conduct, USSG §

3C1.1; and three points were to be added because Solis

“intentionally or recklessly created a substantial risk of death or

serious bodily injury to another person by transporting unsecured

illegal aliens in the cargo area of the vehicle she was operating,”

USSG § 2L1.1(b)(5). The PSR recommended that Solis was also

entitled to a three-point reduction for acceptance of

responsibility, USSG § 3E1.1. The final recommendation of the PSR

was a total offense level of 17. With Solis’s Category I criminal

history, the recommendation resulted in a guideline imprisonment

range of twenty-four to thirty months.

Solis objected, inter alia, to the three-point increase under

§ 2L1.1(b)(5) for “creating a substantial risk of death or serious

bodily injury,” arguing that the third row seat of the minivan had

been removed and “the illegal aliens were lying comfortably on the

3
floor of the vehicle.” The Probation Officer asserted that the

increase was applicable, emphasizing that “[i]nstead of having the

third row seat in place and having adequate seating and safety

restraints for all seven of the smuggled aliens, [Solis] elected to

place the aliens in jeopardy by having them lay [sic] on the floor

of the vehicle side by side in a crowded and unsecured position

while traveling at highway speeds.”

The district court overruled Solis’s objection at sentencing,

stating:

[T]he Fifth Circuit has said that the back of
a pickup truck is dangerous; yet, they can get
out and they have fresh air. It’s just
dangerous to transport people like that. . .
.

***

So if the back of a pickup truck is dangerous,
I think the back of a minivan where people can
be thrown around and seriously endangered just
in a sudden stop . . . . That’s why [there
are] seats and all seats have seatbelts in
those cars and these people were not given
that opportunity. And the only way they could
be transported was lying like cord wood in the
back of a minivan and that’s dangerous. . . .

The district court sentenced Solis to 24 months in prison and to

three years of supervised release.

Solis filed a timely notice of appeal.

4
 II

A

We continue to apply the same standard of review to a sentence

imposed under the Sentencing Guidelines that we applied prior to

the Supreme Court’s ruling in United States v. Booker, 125 S. Ct.

738 (2005): We review a district court’s interpretation of the

guidelines de novo and its factual determinations for clear error.

United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005)

(interpretation of the guidelines is reviewed de novo); United

States v. Villaneueva, 408 F.3d 193, 203 n.9 (5th Cir. 2005)

(factual determinations are reviewed for clear error).

The facts of Solis’s offense are undisputed, and the question

before us is a strictly legal one to be reviewed de novo: Whether

Solis’s conduct in transporting the illegal aliens qualifies as

“intentionally or recklessly creating a substantial risk of death

or serious bodily injury to another person” as required for a §

2L1.1(b)(5) sentence enhancement.

Under § 2L1.1(b)(5), an individual’s sentence for the offense

of smuggling, transporting, or harboring an unlawful alien is

enhanced if the offense has the following “Special Offense

Characteristic”:

If the offense involved intentionally or
recklessly creating a substantial risk of
death or serious bodily injury to another
person, increase by 2 levels, but if the
resulting offense level is less than 18,
increase to level 18.

5
The commentary to this provision further explains

Reckless conduct to which the adjustment from
subsection (b)(5) applies to a wide variety of
conduct (e.g., 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, or harboring persons in a
crowded, dangerous, or inhumane condition). .
. .

USSG § 2L1.1, comment (n.6).1 Clearly, the conduct to which the

enhancement applies is not limited only to the particular conduct

described in the commentary’s examples, but all of these examples

encompass “situations that, for one reason or another, pose

inherently dangerous risks to the aliens being transported.”

United States v. Garcia-Guerro, 313 F.3d 892, 896 (5th Cir. 2002).

We must determine whether Solis’s transportation of four aliens

lying side by side in the cargo area of her minivan constitutes

such an inherently dangerous risk to the aliens being transported.

We have never before addressed the applicability of § 2L1.1(b)(5)

to facts such as these.

B

Solis argues that her conduct did not create a substantial

risk of injury or bodily harm to the aliens being transported lying

on the floor of the van. The sole support cited by Solis for her

1
"[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline." Stinson v. United
States, 508 U.S. 36, 38 (1993).

6
position is the Ninth Circuit’s decision in United States v. Dixon,

in which the court distinguished between aliens being transported

in the hatchback of a vehicle and aliens being transported in the

trunk of a vehicle. 201 F.3d 1223, 1233 (9th Cir. 2000) (holding

that the district court clearly erred in adopting the PSR’s

findings that the aliens were transported in a trunk when they

were, in fact, transported in the hatchback area of a vehicle).

The Ninth Circuit noted that

Unlike a trunk, except for the lack of
seatbelts, the dangers of riding in the
hatchback area of a car are not obvious. For
example, a person hiding inside a locked trunk
could not extricate himself, while a person
hiding in a hatchback area easily could
extricate himself by pushing up the
lightweight, flimsy hatchback cover.

Id. We understand Solis to argue that riding lying down in the

cargo area of a minivan is far more akin to riding in the hatchback

area of a vehicle than the trunk and, as such, the district court

erred in finding that the aliens in the minivan were exposed to an

inherently dangerous situation.

The Government disagrees. The Government points to our

decision in United States v. Cuyler, in which we held that the

transportation of four illegal aliens in the bed of a pickup truck

on the highway involved a substantial risk of death or serious

bodily injury. 298 F.3d 387 (5th Cir. 2002). We described the

risk associated with the transportation of aliens in a pickup truck

bed as that “aliens who are unrestrained easily can be thrown from

7
the bed of the pickup in the event of an accident or other driving

maneuver of the sort that is unavoidable in highway driving.” Id.

at 391. The Government argues, in essence, that the risks of

injury to the unrestrained aliens lying prone in the cargo area of

a minivan are akin to the risks of unrestrained aliens in the bed

of a pickup truck. The Government also points to cases in the

Ninth and Tenth Circuits in support of the application of §

2L1.1(b)(5) in similar circumstances. United States v. Hernandez-

Guardado, 228 F.3d 1017, 1027-28 (9th Cir. 2000) (holding that the

district court did not abuse its discretion in applying the §

2L1.1(b)(5) enhancement where the number of passengers exceeded the

van’s capacity and where “passengers were not strapped into seats

with seatbelts but were instead lying unrestrained on floorboards

and across seats.”); United States v. Maldonado-Ramires, 384 F.3d

1228, 1231 (10th Cir. 2004) (affirming a § 2L1.1(b)(5) enhancement

where defendant transported aliens in a minivan altered to remove

the rear seats and seatbelts, defendant was the only driver on a

lengthy trip from Arizona to Florida, and defendant mandated that

passengers always remain prone on the floor of the van).

C

We have found no published opinions that address the

particular circumstances created by Solis in transporting four

aliens in the cargo area of the minivan. Other cases have found

that § 2L1.1(b)(5) applies where the defendant has smuggled aliens

in an overcrowded vehicle, often without seats or seat belts. See,

8
e.g., United States v. Jose-Gonzales, 291 F.3d 697 (10th Cir.

2002); United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir.

2001); United States v. Ortiz, 242 F.3d 1078 (8th Cir. 2001). In

all of the cited cases, however, the overcrowding was severe and

easily distinguishable from Solis’s transportation of eight

individuals in a minivan designed to seat seven. Even if we

consider the capacity of the van to be only four (the number of

seats present), this does not approach the overcrowding present in

these other cases. The closest case to ours is Hernandez-Guardado,

cited by the Government. 228 F.3d at 1027-28. This case, however,

does not provide the Government the silver bullet that it seeks.

Not only did the Ninth Circuit review the district court’s

enhancement for abuse of discretion, whereas we are not bound by

such deference to the district court, the Ninth Circuit recognized

in Hernandez-Guardado that “[r]easonable minds could differ as to

the severity of the overcrowding in the vans and the resulting

degree of risk.” Id. at 1028.

Left without clear precedent to follow or adopt, our own

analysis convinces us that Solis’s conduct did not create a

substantial risk of death or serious bodily injury to the aliens

that she was transporting. Although the § 2L1.1(b)(5) enhancement

“applies to a wide variety of conduct,” that conduct is described

by way of example as conduct that “poses inherently dangerous risks

to the aliens being transported.” See Garcia-Guerro, 313 F.3d at

896. The enhancement is meant to impose additional punishment on

9
those individuals who commit the base offense of smuggling,

transporting, or harboring an unlawful alien in a particular manner

that involves those inherently dangerous practices that produce

substantial risks of death or serious bodily injury. We do not

believe the act of transporting four aliens lying in the cargo area

of a minivan, with no aggravating factors, constitutes an

inherently dangerous practice such as to create a substantial risk

of death or serious bodily injury to those aliens.

We have recognized before that the risks to aliens being

transported in a pickup bed is greater than the risks to those

unrestrained passengers in a van, “as they are not protected by the

passenger compartment of the vehicle.” Cuyler, 298 F.3d at 391.

An individual riding in the cargo area of a minivan has access to

oxygen, is not exposed to extreme heat or cold, and can easily

extricate himself from his position on the floor of the van. In

this case, it is not asserted that the van was overcrowded, that

Solis was undertaking a particularly long and/or unsafe journey, or

that the aliens were subjected to any other risks. The only

dangers we consider to be associated with riding in the cargo area

of the minivan are generally the same dangers that arise from an

individual not wearing a seatbelt in a moving vehicle. The §

2L1.1(b)(5) enhancement as written, one would think, does not

extend so far as to increase punishment for offenders simply for

transporting illegal aliens without requiring them to wear

seatbelts.

10
 The application of the § 2L1.1(b)(5) enhancement is meant to

be flexible; but its words must be given some restrictive meaning.

Defining the contours of this enhancement is dependent upon

carefully applying the words of the guideline in a case-specific

analysis. In this case we cannot say that Solis created a

substantial risk of death or serious bodily injury by transporting

four aliens lying side by side in the cargo area of the minivan.

III

For the foregoing reasons, we VACATE Solis’s sentence and

REMAND for re-sentencing in accordance with this opinion.

VACATED and REMANDED.

11