United States v. Garcia , 228 F. App'x 453 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 24, 2007
Charles R. Fulbruge III
Clerk
No. 05-40847
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-40-ALL
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Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Eduardo Garcia appeals from his conviction of illegally
transporting an alien inside the United States. He contends that
the district court erred by adjusting his offense level for
reckless endangerment, by adjusting his offense level for the
number of aliens involved in the offense, by denying him an
adjustment for acceptance of responsibility, and by attributing
three criminal history points to him for a 1995 California
conviction.
*
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this opinion should not be published and is not precedent except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.
Garcia’s contentions regarding the adjustment for reckless
endangerment, the adjustment for the number of aliens, and the
attribution of criminal history points are raised for the first
time on appeal. Those contentions therefore are reviewed under the
plain error standard. See United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,
507 U.S. 725, 731-37 (1993)).
Garcia has failed to demonstrate error regarding the
adjustment for reckless endangerment. The presentence report
indicated very cold conditions in a locked trailer unit of a
tractor-trailer. See United States v. Zuniga-Amezquita, 468 F.3d
886, 889 (5th Cir. 2006). Whether Garcia actually knew about the
cold temperature in the trailer and whether he actually set the
thermostat are factual issues that could have been resolved by the
district court upon proper objections. See United States v. Lopez,
923 F.2d 47, 50 (5th Cir. 1991).
The adjustment for the number of aliens was irrelevant to the
total offense level, which was based on Garcia’s reckless
endangerment of the aliens in the trailer. Garcia has not shown
that the adjustment for the number of aliens had any effect on the
sentence he received and, therefore, has failed to carry his burden
under the plain error standard. See Olano, 507 U.S. at 734;
Williams v. United States, 503 U.S. 193, 203 (1992).
Garcia denied culpability for his offense at the sentencing
hearing, in effect renouncing his guilty plea, and he was not
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entirely cooperative with the probation officer. The district
court’s determination that Garcia did not accept responsibility is
not without foundation in the record. See United States v.
Washington, 340 F.3d 222, 227 (5th Cir. 2003).
Whether Garcia was sentenced to imprisonment, home
confinement, or residency in a halfway house in California in 1995
is a factual issue that could have been resolved had Garcia made a
proper objection in the district court. Garcia cannot demonstrate
plain error regarding that issue. See Lopez, 923 F.2d at 50.
AFFIRMED.
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