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United States v. Torres

In deciding whether to apply the reckless endangerment enhancement, district courts are to consider five non-exhaustive factors: the availability of oxygen; exposure to temperature extremes; the alien's ability to communicate with the driver of the vehicle; the alien's ability to exit the vehicle quickly; and the danger to the alien if an accident occurs. Appellant did not create a substantial risk of death or serious bodily injury by transporting a child in the space under the sleeping area of his tractor-trailer. 5th U.S. Circuit Court of Appeals, No. 09-40678, 03-04-2010

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Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge. *fn1

Defendant-Appellant Antonio Rodolfo Torres pleaded guilty to one count of transporting an illegal alien within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Torres contends the district court erred in adjusting his offense level for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person” based on Torres’s transportation of four illegal aliens in the sleeper compartment of his tractor-trailer, one of whom was hiding under the sleeping area. U.S. Sentencing Guidelines Manual § 2L1.1(b)(6). For the following reasons, we vacate the sentence and remand for resentencing.

On February 23, 2009, Border Patrol Agents conducted a search of Torres’s tractor-trailer at the Sarita, Texas checkpoint. Two adults were found in the sleeping area. After the adults exited, the agents heard an eight-year-old child crying to her mother. The child then removed herself from the space under the sleeping area and exited the tractor-trailer without assistance. The space where she was hiding was approximately fifteen inches high, fifteen inches deep, and thirty-six inches wide. It was solid on three sides, and the front was covered by a vinyl curtain. The agents found a second child in the closet of the sleeping compartment.

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