United States v. Zuniga-Amezquita

United States Court of Appeals
Fifth Circuit
F I L E D
October 31, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-40081
_______________
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
STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ginaldo Zuniga-Amezquita appeals the en-
hancement of his sentence. Because his meth-
od of transporting aliens created a substantial
risk of death or serious bodily injury, we
affirm.
I.
Zuniga-Amezquita pulled his van into the
inspection lane of a Border Patrol checkpoint,
whereupon agents discovered five undocu-
mented Mexican nationals lying side-by-side in
the cargo area, concealed behind boxes and
luggage that were stacked to the van’s ceiling.

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Some of the boxes contained bottles of beer.1
The court did not determine whether the boxes
had been placed on top of the aliens, instead of
merely around them, but for sentencing
purposes “accept[ed] the defendant’s word
that there was nothing heavy piled immediately
on top of these individuals.” We also adopt
that assumption.
The agents found, in Zuniga-Amezquita’s
possession, $3,132 in cash, 3,600 Mexican
pesos, and four handwritten lists showing 177
names accompanied by the names of Mexican
cities and dollar amounts. Two of the aliens
said they had each paid $1,500 to be smuggled
to Houston. Zuniga-Amezquita admitted to
the agents that he had been hired to transport
the aliens.
Zuniga-Amezquita was charged with two
counts of bringing in and harboring certain
aliens in violation of 8 U.S.C. § 1324 and 18
U.S.C. § 2. He pleaded guilty to count one,
and count two was dismissed on the
government’s motion. The presentence report
included, inter alia, a suggested enhancement
in the offense level from 12 to 18 because the
method of transporting aliens “intentionally or
recklessly creat[ed] a substantial risk of death
or serious bodily injury to another person.”
U.S.S.G. § 2L1.1(b)(5) (2005).
Zuniga-Amezquita objected, maintaining
that the enhancement was not warranted be-
cause the back seats of the van had been re-
moved, allowing the aliens ample room to lie
side-by-side. The aliens were able to
communicate with Zuniga-Amezquita, and
their ability to breathe was not hindered by the
boxes and luggage used to conceal them.2
The court overruled the objection,
concluding that if the van had to stop suddenly
the boxes and luggage could fly around and
injure the aliens. If an accident occurred the
boxes could conceal the aliens such that
emergency personnel might be unable to see
them and might not search for them because it
is counterintuitive that passengers would be
1 Zuniga-Amezquita contends on appeal that the
boxes did not contain bottles, despite pictures in
the record evincing that fact. Also, Zuniga-Amez-
quita’s counsel admitted at the sentencing hearing
that some of the boxes used to conceal the aliens
contained beer: “From reviewing the pictures, as
you open up the doors, the first thing you see are
the suitcases and the boxes of beer, and behind that
were the individuals laying [sic] side by side with
boxes on top of them.”
2 On appeal, Zuniga-Amezquita also contends
that the government offered insufficient evidence
about the placement of the boxes and luggage and
that the photographs depicting the location of the
aliens and boxes were insufficiently authenticated.
These arguments were not raised in the district
court, so we review them only for plain error, a
difficult standard to satisfy. United States v. Clay-
ton, 172 F.3d 347, 351 (5th Cir. 1999). Zuniga-
Amezquita’s counsel, arguing at the sentencing
hearing that nothing heavy was placed on top of the
aliens (a fact we assume), implicitly conceded that
the pictures accurately depict the location of the
aliens and the boxes:
From reviewing the pictures, we do concede
that it was neither appropriate, considerate, or
nice to transport human beings or put human
beings in that position. Nobody would like for
a family member, a friend, to be placed in a po-
sition of that nature. Yet, Mr. Zuniga, in an
attempt to commit this crime tried to conceal
these individuals to the best of his abilities.
Counsel further admitted that the aliens were be-
hind stacked boxes and luggage, see supra n.1, and
later that boxes were placed “around” the aliens.
There is no plain error.

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underneath a large pile of boxes and luggage in
the cargo area of a van. Finally, the boxes and
luggage could prevent the aliens from exiting
the vehicle. These were not “little boxes that
you could push aside.” The court stated that
had the aliens been hidden with clothing,
which is obviously lighter and smaller than
boxes and luggage, “that would be a different
situation.” Based on the foregoing, the court
concluded that the method Zuniga-Amezquita
used to transport the aliens created a
substantial risk of death or serious bodily
injury.
II.
After United States v. Booker, 543 U.S.
220 (2005), we continue to review a district
court’s interpretation and application of the
sentencing guidelines de novo and its factual
findings for clear error. United States v. Cald-
well, 448 F.3d 287, 290 (5th Cir. 2006) (citing
United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005); United States v. Creech, 408
F.3d 264, 270 & n.2 (5th Cir.), cert. denied,
126 S. Ct. 777 (2005). The commentary to
§ 2L1.1(b)(5) lists examples of conduct
warranting the enhancement: “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.”
U.S.S.G. § 2L1.1(b)(5) cmt. n.6.3 Although
the factual situation in this caseSSconcealing
aliens with boxes and luggageSSis not express-
ly included in the list, this guideline is not
limited to the examples provided in the
commentary. United States v. Rodriguez-Me-
sa, 443 F.3d 397, 401 (5th Cir. 2006) (citing
United States v. Garcia-Guerrero, 313 F.3d
892, 896 (5th Cir. 2002)).
The contours of this sentencing
enhancement depend on a careful application
of the guidelines on a case-specific basis.
United States v. Solis-Garcia, 420 F.3d 511,
516 (5th Cir. 2005). A summary of four
recent decisions illustrates these contours and
the framework we have used to determine the
applicability of § 2L1.1(b)(5).
The defendant in United States v. Cuyler,
298 F.3d 387 (5th Cir. 2002), was paid to
transport ten illegal aliens from San Antonio to
Houston. Six rode in the cab of an extended-
cab pickup truck, and four lay side-by-side in
the bed. Cuyler’s method of transporting the
aliens justified the enhancement, because
passengers “easily can be thrown from the bed
of the pickup in the event of an accident or
other driving maneuver of the sort that is un-
avoidable in highway driving.” Id. at 391.
This risk distinguished Cuyler’s method of
transporting aliens from that of the defendant
in Dixon, a Ninth Circuit case cited several
times by this court in § 2L1.1(b)(5) cases, in
which two aliens were smuggled in the
hatchback area of a car. Cuyler, 298 F.3d at
390 (citing United States v. Dixon, 201 F.3d
1223, 1234 (9th Cir. 2000)). The Dixon court
held that this method did not warrant the
enhancement, because passengers in the
hatchback area of a car, unlike those in the
trunk, are not deprived of oxygen and can
easily extricate themselves by lifting the flimsy
covering of the hatchback area. Dixon, 201
F.3d at 1223.
We revisited § 2L1.1(b)(5) in Solis-Garcia
and held that “without further aggravating
3 “[C]ommentary in the Guidelines Manual that
interprets or explains a guideline is authoritative
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
States, 508 U.S. 36, 38 (1993).

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

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

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