United States v. Juarez , 171 F. App'x 476 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-40548
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL JUAREZ, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2022-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Raul Juarez, III, appeals his guilty-plea conviction of
transporting undocumented aliens within the United States by
means of a motor vehicle for private financial gain. Juarez
argues that the facts of this case do not give rise to the level
of endangerment required for an enhancement under U.S.S.G.
§ 2L1.1(b)(5).
The presentence report detailed that two material witnesses
stated that Juarez instructed them to get under the bed of the
*
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this opinion should not be published and is not precedent except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.
No. 05-40548
-2-
sleeper of the tractor trailer driven by Juarez; that they were
“squeezed in and unable to breathe;” and that “they were banging
the compartment top to get someone’s attention.” The district
court’s application of the enhancement was not error. See United
States v. Villanueva, 408 F.3d 193, 203 (5th Cir.), cert. denied,
126 S. Ct. 268 (2005); see also United States v. Ortiz, 242 F.3d
1078, 1078-79 (8th Cir. 2001); U.S.S.G. § 2L1.1(b)(5), comment.
(n.6).
Alternatively, Juarez argues that he was not the individual
responsible for creating a substantial risk of death or serious
bodily injury because he did not direct the aliens where to hide,
nor could he have because the aliens spoke Portugese and he does
not. He argues that it was the guide who arranged the aliens in
the tractor and that Juarez could not have foreseen that the
aliens were going to place themselves where they did. Because
Juarez did not present any rebuttal evidence establishing that
the information in the presentence report regarding his placement
of the aliens was materially untrue, the district court’s
application of the enhancement under U.S.S.G. § 2L1.1(b)(5) was
not error. See United States v. Alford, 142 F.3d 825, 832 (5th
Cir. 1998).
Finally, Juarez argues that the district court should not
have assessed the reckless endangerment enhancement because there
was no jury finding on the enhancement nor did he admit to the
enhancement and because the indictment failed to allege that he
No. 05-40548
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intentionally or recklessly created a substantial risk of death
or serious bodily injury to another person. First, Juarez’s
argument regarding the indictment is factually inaccurate.
Second, even after United States v. Booker, 543 U.S. 220 (2005),
the sentencing judge may find facts relevant to the determination
of a Guideline’s sentencing range. United States v. Mares, 402
F.3d 511, 519 (5th Cir. 2005). The district court’s judgment is
AFFIRMED.