United States v. Limon ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-40652
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ALBERTO LIMON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2356-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Alberto Limon appeals his 18-month sentence imposed
following his guilty-plea conviction for transporting an
undocumented alien within the United States by means of a vehicle
for private financial gain. Limon argues that the district court
erred in increasing his offense level for creating a “substantial
risk of death or serious bodily injury” by transporting two
undocumented aliens in the windjammer spoiler of his tractor
trailer. Limon acknowledges that he agreed to transport 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this opinion should not be published and is not precedent except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. 05-40652
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aliens. However, he asserts that he was not aware of the fact
that they were hiding in the windjammer spoiler of his tractor
trailer.
Following United States v. Booker, 543 U.S. 220 (2005), this
court continues to review the district court’s application of the
Guidelines de novo and its factual findings for clear error. See
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005);
United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir.),
cert. denied, 126 S. Ct. 268 (2005). A factual finding is not
clearly erroneous as long as it is plausible in light of the
record as a whole. United States v. Simpson, 334 F.3d 453, 455-
56 (5th Cir. 2003).
Limon’s argument that the record lacks evidence
demonstrating his knowledge of the fact that the aliens were
hiding in the windjammer is unavailing. The presentence report
(PSR) reflects that Limon admitted to authorities that he knew
that the aliens were hiding in the windjammer spoiler of his
tractor trailer. Limon never objected to the PSR’s recitation of
his statement nor denied making the statement to authorities. He
has thus failed to show that the information in the PSR
concerning his own statement “was materially untrue.” See United
States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991). As such,
the district court’s determination that Limon “intentionally or
recklessly creat[ed] a substantial risk of death or serious
bodily injury” by transporting the aliens in the windjammer
No. 05-40652
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spoiler of his tractor trailer is plausible in light of the
record as a whole. See Simpson, 334 F.3d at 455-56.
Accordingly, the district court did not clearly err in applying
the enhancement under U.S.S.G. § 2L1.1(b)(5). Limon’s sentence
is thus AFFIRMED.