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Click here for the full text of this decision FACTS:Ginaldo Zuniga-Amezquita pulled his van into the inspection lane of a U.S. Border Patrol checkpoint, whereupon agents discovered five undocumented Mexican nationals lying side-by-side in the cargo area, concealed behind boxes and luggage that were stacked to the van’s ceiling. Some of the boxes contained bottles of beer. 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 under U.S. Sentencing Guidelines � 2L1.1(b)(5) 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.” Zuniga-Amezquita objected, maintaining that the enhancement was not warranted because the back seats of the van had been removed, 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. 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. 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.” The court concluded that the method Zuniga-Amezquita used to transport the aliens created a substantial risk of death or serious bodily injury. Zuniga-Amezquita appealed. HOLDING:Affirmed. The application of �2L1.1(b)(5) is warranted if a method of transportation exposes aliens to a substantial risk, in the event of an accident, of death or serious bodily injury, the court stated. The risk, the court stated, must be greater than that of an ordinary passenger not wearing a seatbelt in a moving vehicle. The court reviewed its case law finding that transporting aliens in the bed of a pickup truck created a substantial risk of death or serious injury and warranted the sentencing enhancement, but merely transporting them in the cargo area of a minivan, without seatbelts, did not. The district court concluded that in the event of an accident the boxes and luggage in Zuniga-Amezquita’s van could have flown around and struck or landed on top of the aliens. If the boxes containing bottles were torn open, individual bottles of beer could fly about the cargo area, and bottles could also break, scattering glass, the court stated. Being struck by a flying box, piece of luggage, bottle of beer or glass could cause serious bodily injury, the court stated. Thus, the court held that Zuniga-Amezquita’s transportation 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, the court stated. OPINION:Smith, J.; Jones, C.J., and Smith and Stewart, J.J.

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