United States v. Ernesto Hernandez-Perez

366 F. App'x 531

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 18, 2010
• Docket: 09-10538
• Status: Unpublished

Opinion

PER CURIAM: *

Defendant-Appellant Ernesto Hernandez-Perez appeals his 24-month sentence for transporting illegal aliens for financial gain. The district court enhanced the sentence pursuant to U.S.S.G. § 2L1.1(b)(6) after it determined that Hernandez-Perez intentionally or recklessly created a substantial risk of death or serious bodily injury to the aliens he transported. Hernandez-Perez contends that the circumstances of his offense do not warrant the sentence enhancement.

We review a district court’s interpretation of the Guidelines de novo and reviews its factual findings for clear error. See United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir.2005). It is undisputed that Hernandez-Perez transported fifteen persons in a vehicle rated to carry seven passengers and that thirteen of his passengers lacked safety restraints and were “lying on top of each other” in the vehicle’s rear compartment. As the commentary to § 2L1.1 gives “carrying substantially more passengers than the rated capacity of a motor vehicle or vessel” as an example of reckless conduct that would support a sentence enhancement under that Guideline, we perceive no error in Hernandez-Perez’s sentence. See § 2L1.1, comment. (n.5).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.