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Fifth Circuit: ‘Nonsubstantial Overcrowding’ of Vehicle Used in Transporting Illegal Aliens Insufficient for Imposition of Sentencing Enhancement Under Guidelines § 2L1.1(b)(6)

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ruled that nine people in a vehicle with a rated capacity for seven people is insufficient for imposition of sentencing enhancement under U.S. Sentencing Guideline (“Guidelines”) § 2 L1.1(b)(6).

Felipe Castelo-Palma was pulled over by a Presidio County, Texas, sheriff’s deputy for a license plate light that was out. Castelo-Palma’s Ford Explorer held nine people: Castelo-Palma; his codefendant, Bryan Gonzales-Rivera (occupying the front passenger’s seat); and seven illegal aliens.

Castelo-Palma pleaded guilty to one count of transportation of illegal aliens for financial gain. His presentence report (“PSR”) recommended a three-level enhancement under § 2L1.1(b)(6) for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person” because the Explorer had a seated capacity of seven passengers but contained nine people upon Castelo-Palma’s arrest. The enhancement gave Castelo-Palma a Guidelines imprisonment range of 24 to 30 months. The U.S. District Court for the Western District of Texas overruled Castelo-Palma’s objection to the enhancement and sentenced him to 24 months in prison and three years of supervised release. Castelo-Palma appealed.

The Court observed that it has “identified five factors to consider when applying § 2L1.1(b)(6): ‘the availability of oxygen, exposure to temperature extremes, the aliens’ ability to communicate with the driver of the vehicle, their ability to exit the vehicle quickly, and the danger to them if an accident occurred.’” United States v. Zuniga-Amezquita, 468 F.3d 886 (5th Cir. 2006). The enhancement applies to a wide variety of conduct, including “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; [and] harboring persons in a crowded, dangerous, or inhumane condition[.]” § 2L1.1(b)(6) cmt. n. 3.

In the instant case, the Government contended that the aliens’ ability to exit the vehicle quickly and the danger that they would be seriously injured in an accident — along with the Explorer’s overcrowding — justified the enhancement.

The Court stated: “The record does not reflect, and the district court made no findings, as to how the aliens were positioned in the SUV, or how the seats in the vehicle were configured. Conceivably, the back seats could have been down ‘to create an open cargo area’ similar to [the facts in] Zuniga-Amezquita.” Ordinarily, “transporting aliens in the cargo area of a van … does not justify the application of § 2L1.1(b)(6).” Id.

In the case at bar, there was nothing in the record to show that the aliens were crammed into a tight compartment as in United States v. Garza, 587 F.3d. 304 (5th Cir. 2009), or that boxes and packages blocked their exit as in Zuniga-Amezquita, the Court reasoned.

Regarding the danger posed to the aliens in the event of a crash, the Government argued Castelo-Palma transported them without wearing seat belts and at night. But “this enhancement ‘does not extend so far as to increase punishment for offenders simply for transporting illegal aliens without requiring them to wear seatbelts.’” United States v. Rodriguez, 630 F.3d 377 (5th Cir. 2011). And driving at night did not support imposition of the enhancement. Id.

Finally, the fact that the Explorer held nine people but is rated for seven did not show the vehicle was “carrying substantially more passengers than the rated capacity,” the Court concluded. § 2L1.1(b)(6) cmt. n. 3 (emphasis added). Compare United States v. Sanchez-Gaucin, 595 F. App’x 344 (5th Cir. 2014) (affirming enhancement where vehicle rated for 15 was carrying 34 occupants), with Rodriguez (enhancement not justified where six people occupied vehicle with capacity rating of five). Thus, the Court ruled that absent “other aggravating factors, nonsubstantial overcrowding alone is not enough to justify application” of the enhancement.

Accordingly, the Court vacated Castelo-Palma’s sentence and remanded for resentencing consistent with its opinion. See: United States v. Castelo-Palma, 30 F.4th 284 (5th Cir. 2022). 

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