United States v. Zuniga-Amezquita

United States Court of Appeals
Fifth Circuit
F I L E D
In the October 31, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________

m 06-40081
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GINALDO ZUNIGA-AMEZQUITA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Southern District of Texas
m 5:05-CR-1170-1
______________________________

Before JONES, CHIEF JUDGE, SMITH, and affirm.
STEWART,
Circuit Judges. I.
Zuniga-Amezquita pulled his van into the
JERRY E. SMITH, Circuit Judge: inspection lane of a Border Patrol checkpoint,
whereupon agents discovered five undocu-
Ginaldo Zuniga-Amezquita appeals the en- mented Mexican nationals lying side-by-side in
hancement of his sentence. Because his meth- the cargo area, concealed behind boxes and
od of transporting aliens created a substantial luggage that were stacked to the van’s ceiling.
risk of death or serious bodily injury, we
Some of the boxes contained bottles of beer.1 that the enhancement was not warranted be-
The court did not determine whether the boxes cause the back seats of the van had been re-
had been placed on top of the aliens, instead of moved, allowing the aliens ample room to lie
merely around them, but for sentencing side-by-side. The aliens were able to
purposes “accept[ed] the defendant’s word communicate with Zuniga-Amezquita, and
that there was nothing heavy piled immediately their ability to breathe was not hindered by the
on top of these individuals.” We also adopt boxes and luggage used to conceal them.2
that assumption.
The court overruled the objection,
The agents found, in Zuniga-Amezquita’s concluding that if the van had to stop suddenly
possession, $3,132 in cash, 3,600 Mexican the boxes and luggage could fly around and
pesos, and four handwritten lists showing 177 injure the aliens. If an accident occurred the
names accompanied by the names of Mexican boxes could conceal the aliens such that
cities and dollar amounts. Two of the aliens emergency personnel might be unable to see
said they had each paid $1,500 to be smuggled them and might not search for them because it
to Houston. Zuniga-Amezquita admitted to is counterintuitive that passengers would be
the agents that he had been hired to transport
the aliens.
2
On appeal, Zuniga-Amezquita also contends
Zuniga-Amezquita was charged with two that the government offered insufficient evidence
counts of bringing in and harboring certain about the placement of the boxes and luggage and
aliens in violation of 8 U.S.C. § 1324 and 18 that the photographs depicting the location of the
U.S.C. § 2. He pleaded guilty to count one, aliens and boxes were insufficiently authenticated.
and count two was dismissed on the These arguments were not raised in the district
government’s motion. The presentence report court, so we review them only for plain error, a
included, inter alia, a suggested enhancement difficult standard to satisfy. United States v. Clay-
in the offense level from 12 to 18 because the ton, 172 F.3d 347, 351 (5th Cir. 1999). Zuniga-
Amezquita’s counsel, arguing at the sentencing
method of transporting aliens “intentionally or
hearing that nothing heavy was placed on top of the
recklessly creat[ed] a substantial risk of death aliens (a fact we assume), implicitly conceded that
or serious bodily injury to another person.” the pictures accurately depict the location of the
U.S.S.G. § 2L1.1(b)(5) (2005). aliens and the boxes:

Zuniga-Amezquita objected, maintaining From reviewing the pictures, we do concede
that it was neither appropriate, considerate, or
nice to transport human beings or put human
1
Zuniga-Amezquita contends on appeal that the beings in that position. Nobody would like for
boxes did not contain bottles, despite pictures in a family member, a friend, to be placed in a po-
the record evincing that fact. Also, Zuniga-Amez- sition of that nature. Yet, Mr. Zuniga, in an
quita’s counsel admitted at the sentencing hearing attempt to commit this crime tried to conceal
that some of the boxes used to conceal the aliens these individuals to the best of his abilities.
contained beer: “From reviewing the pictures, as
you open up the doors, the first thing you see are Counsel further admitted that the aliens were be-
the suitcases and the boxes of beer, and behind that hind stacked boxes and luggage, see supra n.1, and
were the individuals laying [sic] side by side with later that boxes were placed “around” the aliens.
boxes on top of them.” There is no plain error.

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underneath a large pile of boxes and luggage in commentary. United States v. Rodriguez-Me-
the cargo area of a van. Finally, the boxes and sa, 443 F.3d 397, 401 (5th Cir. 2006) (citing
luggage could prevent the aliens from exiting United States v. Garcia-Guerrero, 313 F.3d
the vehicle. These were not “little boxes that 892, 896 (5th Cir. 2002)).
you could push aside.” The court stated that
had the aliens been hidden with clothing, The contours of this sentencing
which is obviously lighter and smaller than enhancement depend on a careful application
boxes and luggage, “that would be a different of the guidelines on a case-specific basis.
situation.” Based on the foregoing, the court United States v. Solis-Garcia, 420 F.3d 511,
concluded that the method Zuniga-Amezquita 516 (5th Cir. 2005). A summary of four
used to transport the aliens created a recent decisions illustrates these contours and
substantial risk of death or serious bodily the framework we have used to determine the
injury. applicability of § 2L1.1(b)(5).

II. The defendant in United States v. Cuyler,
After United States v. Booker, 543 U.S. 298 F.3d 387 (5th Cir. 2002), was paid to
220 (2005), we continue to review a district transport ten illegal aliens from San Antonio to
court’s interpretation and application of the Houston. Six rode in the cab of an extended-
sentencing guidelines de novo and its factual cab pickup truck, and four lay side-by-side in
findings for clear error. United States v. Cald- the bed. Cuyler’s method of transporting the
well, 448 F.3d 287, 290 (5th Cir. 2006) (citing aliens justified the enhancement, because
United States v. Villegas, 404 F.3d 355, 359 passengers “easily can be thrown from the bed
(5th Cir. 2005); United States v. Creech, 408 of the pickup in the event of an accident or
F.3d 264, 270 & n.2 (5th Cir.), cert. denied, other driving maneuver of the sort that is un-
126 S. Ct. 777 (2005). The commentary to avoidable in highway driving.” Id. at 391.
§ 2L1.1(b)(5) lists examples of conduct
warranting the enhancement: “transporting This risk distinguished Cuyler’s method of
persons in the trunk or engine compartment of transporting aliens from that of the defendant
a motor vehicle, carrying substantially more in Dixon, a Ninth Circuit case cited several
passengers than the rated capacity of a motor times by this court in § 2L1.1(b)(5) cases, in
vehicle or vessel, or harboring persons in a which two aliens were smuggled in the
crowded, dangerous, or inhumane condition.” hatchback area of a car. Cuyler, 298 F.3d at
U.S.S.G. § 2L1.1(b)(5) cmt. n.6.3 Although 390 (citing United States v. Dixon, 201 F.3d
the factual situation in this caseSSconcealing 1223, 1234 (9th Cir. 2000)). The Dixon court
aliens with boxes and luggageSSis not express- held that this method did not warrant the
ly included in the list, this guideline is not enhancement, because passengers in the
limited to the examples provided in the hatchback area of a car, unlike those in the
trunk, are not deprived of oxygen and can
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easily extricate themselves by lifting the flimsy
“[C]ommentary in the Guidelines Manual that covering of the hatchback area. Dixon, 201
interprets or explains a guideline is authoritative
F.3d at 1223.
unless it violates the Constitution or a federal stat-
ute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.” Stinson v. United
We revisited § 2L1.1(b)(5) in Solis-Garcia
States, 508 U.S. 36, 38 (1993). and held that “without further aggravating

3
factors, [defendant’s] conduct in transporting rises to the level of creating a substantial risk
seven aliens, only four of whom were lying of death or serious bodily injury. Although the
down in the cargo area of the minivan, does application of § 2L1.1(b)(5) requires a fact-
not constitute ‘intentionally or recklessly cre- specific inquiry, the cases described above pro-
ating a substantial risk of death or serious bod- vide a useful framework for evaluating
ily injury to another person.’” Solis-Garcia, situations not explicitly listed in the
420 F.3d at 512 (emphasis added). As commentary to the guideline. Despite the fact
distinguished from the circumstances in Cuy- that a single, bright-line test is not necessarily
ler, the aliens in Solis-Garcia were protected appropriate for a guideline that must be
by the passenger compartment of the minivan. applied to a wide variety of factual settings,
They had access to oxygen, were shielded we have articulated five factors to consider
from extreme temperatures, and could easily when applying § 2L1.1(b)(5): the availability
and quickly extricate themselves from the of oxygen, exposure to temperature extremes,
vehicle if needed. Id. at 516. The only the aliens’ ability to communicate with the
dangers were the same dangers arising from a driver of the vehicle, their ability to exit the
passenger not wearing a seatbelt in a moving vehicle quickly, and the danger to them if an
vehicle. Id. We left for future cases the task accident occurs.4
of identifying the “aggravating factors” that
warrant the application of § 2L1.1(b)(5). The first three factors are not disputed in
the present case: The aliens were able to
In Rodriguez-Mesa we identified one of breathe freely, the temperature in the van was
these aggravating factors. The defendant was not excessive, and the aliens could
apprehended transporting an illegal alien from communicate with Zuniga-Amezquita. The
Mexico to Houston; the alien was concealed in applicability of § 2L1.1(b)(5) thus turns on the
a compartment built into the center console of final two factors.
a minivan. Rodriguez-Mesa, 443 F.3d at 398.
The cramped compartment covered the alien’s A.
head and torso, and his legs extended out of Transporting aliens in a manner that
the compartment onto the floorboards of the significantly hinders their ability to exit the
vehicle. Id. We held that because he could vehicle quickly creates a substantial risk of
not easily extricate himself from the death or serious bodily injury. Dixon and
compartment, transporting him in this manner Rodriguez-Mesa illustrate the application of
constituted an aggravating factor under Solis- this factor to specific transportation methods.
Garcia and thus justified the application of the The Dixon court held that transporting aliens
sentencing enhancement. Id. at 403. in the hatchback area of a car did not warrant
the sentencing enhancement, because the
III. flimsy hatchback cover did not sufficiently
Given that transporting aliens in the cargo impede the aliens’ ability to exit the vehicle.
area of a van, without more, does not justify We found, in Rodriguez-Mesa, that
the application of § 2L1.1(b)(5), we must now transporting an alien by placing his torso in a
decide whether the additional factor of
stacking boxes and luggage around the aliens
constitutes an aggravating factor such that 4
This list is not exhaustive, and future factual
Zuniga-Amezquita’s method of transportation situations may present additional factors.

4
compartment from which it was difficult to moving vehicle. Cuyler and Solis-Garcia illus-
extricate himself did warrant the enhancement. trate the application of this factorSStransport-
ing aliens in the bed of a pickup truck creates
Zuniga-Amezquita’s method oftransporting a substantial risk of death or serious injury and
aliens is more like the method in Rodriguez- warrants the sentencing enhancement, but
Mesa than the one in Dixon. The district court merely transporting them in the cargo area of
found that boxes and luggage were “practically a minivan, without seatbelts, does not.
piled up to the top of the van.” The boxes
were stacked on all sides of the aliens; there Zuniga-Amezquita’s transportation method
was no gap through which they could exit. differed from those of the defendants in those
Indeed, the boxes were placed to ensure that two cases. Unlike the facts in Cuyler, the ali-
no such gaps would exist, so customs officials ens were protected by the passenger
would be unable to detect the aliens. The compartment of the van and were not in
court also found that “these are not little boxes danger of being ejected; the stacked boxes and
that you could push aside,” distinguishing the luggage presented a risk not present in Solis-
hatchback cover in Dixon. Garcia. Thus we consider whether, in the
event of an accident, the stacked boxes and
Stacked boxes and luggage obviously im- luggage constituted an aggravating factor that
pede the ability to move freely and to exit the created a substantial risk of death or serious
vehicle quickly. This is particularly so if, as bodily injury.
here, the boxes and luggage are packed so
tightly around the aliens that there is no place The district court found that in the event of
to set a box that has been moved out of the an accident the boxes and luggage could fly
way. The van door was covered by a wall of around and strike or land on top of the aliens.
boxes, some containing bottles of beer and Although some of the boxes were empty, some
thus quite heavy and difficult to move. With contained bottles of beer. These boxes could
no place to which to move these boxes, the become dangerous projectiles if they began
aliens would be unable to access the door and moving freely about the van’s cargo area. If
exit the van. They would have a much more the boxes containing bottles were torn open,
difficult time exiting the vehicle than did the individual bottles of beer could fly about the
aliens in Dixon, who needed only to lift the cargo area, and bottles could also break, scat-
flimsy hatchback cover and open the back tering glass.
door of the car, or even than did the alien in
Rodriguez-Mesa, whose exit from the vehicle Being struck by a flying box, piece of lug-
was unimpeded once he extricated himself gage, bottle of beer, or glass could cause seri-
from the compartment. ous bodily injury. Zuniga-Amezquita’s trans-
portation method placed the aliens in danger of
B. incurring such an injury in the event of an
The application of § 2L1.1(b)(5) is warrant- accident. The risk of injury was greater than
ed if a method of transportation exposes aliens that faced by an ordinary passenger, without a
to a substantial risk, in the event of an ac- seatbelt, who is not surrounded by boxes and
cident, of death or serious bodily injury. The luggage piled to the ceiling of a vehicle.
risk must, however, be greater than that of an
ordinary passenger not wearing a seatbelt in a AFFIRMED.

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