Summary Calendar UNITED STATES OF AMERICA v. Kevin Joseph Mitchell

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40289
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KEVIN JOSEPH MITCHELL
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 07-40289
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Kevin Joseph Mitchell appeals his sentence following his guilty plea
conviction for aiding and abetting the transportation of an undocumented alien
within the United States for private financial gain. He argues that the district
court erred in increasing his offense level pursuant to U.S.S.G. § 2L1.1(b)(5)
based on the reckless endangerment of the aliens he was carrying under and
behind the sleeper compartments of his tractor trailer. Because it is unclear
whether Mitchell made an affirmative choice to forego his challenge to the
United States Court of Appeals
Fifth Circuit
F I L E D
December 2, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40289
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§ 2L1.1(b)(5) enhancement in the district court, or whether he inadvertently
neglected to pursue his written objection to the enhancement, we will review for
plain error. See United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006).
Plain error results if there is error, the error is clear or obvious, and the error
affected Mitchell’s substantial rights. See United States v. Villanueva, 408 F.3d
193, 202 (5th Cir. 2005). If all three conditions are met, this court may exercise
its discretion to correct the error only if it finds that the error “seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotations and citation omitted).
The § 2L1.1(b)(5) enhancement applies to “situations that, for one reason
or another, pose inherently dangerous risks to the aliens being transported.”
United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005). Although the
risk to the aliens must be greater than that of an ordinary passenger not
wearing a seatbelt in a moving vehicle, “[t]ransporting aliens in a manner that
significantly hinders their ability to exit the vehicle quickly creates a substantial
risk of death or serious bodily injury.” United States v. Zuniga-Amezquita, 468
F.3d 886, 889 & n.4 (5th Cir. 2006).
The record reflects that Mitchell placed the aliens in compartments which
impeded their ability to exit the tractor trailer quickly in the event of an
accident. Further, it is unlikely that anyone would have looked for the aliens in
the sealed compartments had an accident occurred. Because Mitchell has
demonstrated no clear or obvious error in the district court’s application of
§ 2L1.1(b)(5), the judgment of the district court is AFFIRMED.

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