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.
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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
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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.
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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.
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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).
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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
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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,
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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
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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.
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