U.S. v. Solis-Garcia

• Decision Date: 09 August 2005
• Docket Number: No. 04-41439.,04-41439.
• Citation: 420 F.3d 511
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Veronica SOLIS-GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

420 F.3d 511

UNITED STATES of America, Plaintiff-Appellee, v. Veronica SOLIS-GARCIA, Defendant-Appellant.

No. 04-41439.

United States Court of Appeals, Fifth Circuit.

August 9, 2005.

Kathlyn Giannaula Snyder and James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Armando Cavada, Corpus Christi, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

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.

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 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.

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, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (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. Villanueva, 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.

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-Guerrero, 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 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...