Case: 16-40022 Document: 00513779769 Page: 1 Date Filed: 12/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40022 FILED
Summary Calendar December 1, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE JAVIER VILLAFRANCA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:
Jose Javier Villafranca appeals his 57-month sentence following his jury-
trial conviction for conspiring to transport and transporting undocumented
aliens within the United States for financial gain, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), (v)(I) & (B)(i). Villafranca asserts that the district court
clearly erred in applying the special skill enhancement under U.S.S.G. § 3B1.3
based on his possession of a commercial driver’s license. Because there is no
constitutional right to hybrid representation on appeal, see United States v.
Ogbonna, 184 F.3d 447, 449 & n.1 (5th Cir. 1999), Villafranca’s pro se letter
filed after the close of briefing is not considered herein.
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No. 16-40022
Section 3B1.3 provides for a two-level upward adjustment if the
defendant used a special skill in a manner that significantly facilitated the
commission or concealment of the offense. We have held that the ability to
drive a tractor trailer truck as evidenced by the possession of a commercial
driver’s license constitutes a special skill for purposes of § 3B1.3. See United
States v. Gonzalez, 627 F. App’x 381, 382 (5th Cir 2015); United States v.
Ordonez, 334 F. App’x 619, 624 (5th Cir. 2009). 1 While merely persuasive, see
Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006), our unpublished
decisions are consistent with the decisions of other circuits on this issue. See,
e.g., United States v. Berry, 717 F.3d 823, 834-35 (10th Cir. 2013); United States
v. Martinez, 509 F. App’x 889, 894 (11th Cir. 2013); United States v. Vasallo,
518 F. App’x 147, 149 (4th Cir. 2013); United States v. Smith, 332 F.3d 455,
458-59 (7th Cir. 2003); United States v. Mendoza, 78 F.3d 460, 465 (9th Cir.
1996).
Furthermore, in Gonzalez, 627 F. App’x at 382, we concluded that the
defendant’s commercial driver’s license and years of truck-driving experience
significantly facilitated his commission of the offense of transporting
undocumented aliens because, without those special skills, he would have been
unable to tow the tractors in which the aliens were hidden. As we explained
in United States v. Gill, 642 F. App’x 323, 326 (5th Cir. 2016), by carrying the
aliens in the truck’s trailer, the defendant “gave the appearance that he was
1 Although both Gonzalez and Ordonez refer to this skill merely as “possession” of a
commercial driver’s license (“CDL”), their analysis makes it clear that possession of a CDL is
shorthand for the knowledge and ability to drive a tractor trailer truck, evinced by the
legitimate acquisition of a CDL. See Gonzalez, 627 F. App’x at 382 (“As the district court
determined, Gonzalez not only possessed a commercial driver’s license but also had a
particular ability to drive a truck towing two additional tractors.”); Ordonez, 334 F. App’x at
624 (“We have never directly addressed the issue of whether a CDL may constitute a ‘special
skill,’ but other courts have determined that a special skill enhancement based on the ability
to drive a tractor trailer truck may be appropriate.”).
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No. 16-40022
hauling a legitimate load and made it much more difficult to identify the
aliens.” The record showed that Villafranca, who had fifteen years of
commercial truck-driving experience, acted as a licensed truck driver
purporting to carry a legitimate load through a checkpoint on one of the
nation’s busiest corridors where there are thousands of other tractor-trailers.
Accordingly, the district court did not clearly err in determining that
Villafranca’s special skill of driving a tractor trailer truck significantly
facilitated the commission of the offenses. See § 3B1.3; United States v. Pruett,
681 F.3d 232, 248 (5th Cir. 2012). The judgment of the district court is
AFFIRMED.
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