United States v. Romero , 292 F. App'x 350 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 11, 2008
No. 08-40074
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MAURICIO CENTENO ROMERO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-473-ALL
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Mauricio Centeno Romero (Romero) appeals his sentence for transporting
an illegal alien within the United States by means of a motor vehicle in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii). Romero contends that the district court reversibly
erred when it enhanced his offense level under U.S.S.G. § 2L1.1(b)(6) because
there was no evidence that he intentionally or recklessly created a substantial
risk of death or serious bodily injury to the aliens. He concedes that the aliens
were transported under conditions which created a substantial risk of death or
*
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should not be published and is not precedent except under the limited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. 08-40074
serious bodily injury. He argues, however, that the Government failed to
establish that he acted with the requisite mens rea because there was no
evidence that he knew or should have known that the aliens were hidden in the
air dam of his tractor-trailer. This court reviews the district court’s application
of the Sentencing Guidelines de novo and its findings of fact for clear error.
United States v. Charon, 442 F.3d 881, 887 (5th Cir. 2006).
Even if Romero did not have actual knowledge that the aliens were hidden
in the air dam, he is accountable for “all reasonably foreseeable acts and
omissions of others in furtherance of [a] jointly undertaken criminal activity.”
U.S.S.G. § 1B1.3(a)(1)(B). The proper focus is whether the reckless conduct of
transporting aliens in the air dam of a tractor-trailer was reasonably foreseeable
in connection with the criminal activity in which Romero agreed to participate.
See United States v. De Jesus-Ojeda, 515 F.3d 434, 443 (5th Cir. 2008).
The record shows that on June 21, 2007, two months prior to the instant
offense, Romero’s employee, Ricardo Vega-Marquez, was detained at the same
Border Patrol checkpoint after agents found three aliens hidden in the air dam
of Romero’s tractor-trailer. Bukipin’s phone number was found in two of the
aliens’ pockets. Phone records for the day in question also showed several calls
between Romero and an unidentified individual, as well as several calls between
Bukipin, the unidentified individual, and another individual who Romero had
a picture of in his cellular phone. Further, the presentence report (PSR)
provides that Bukipin approached Romero on several occasions throughout the
years about transporting aliens. Although Romero had previously declined
Bukipin’s offers, these facts support an inference that Romero had prior
knowledge of Bukipin’s alien smuggling operation. Moreover, the PSR provides
that 38 phone calls were made between Romero and Bukipin from July 26, 2007,
to August 23, 2007, further demonstrating Romero’s more than minimal
involvement in the operation. Although the district court did not rely on
§ 1B1.3(a)(1)(B) or the prior incident when it overruled Romero’s objection, this
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No. 08-40074
court “may affirm the district court’s judgment on any basis supported by the
record.” United States v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005). Therefore,
based on the foregoing, it was reasonably foreseeable that the aliens would be
hidden in the air dam of Romero’s tractor-trailer, and the district court did not
clearly err when it enhanced Romero’s offense level under § 2L1.1(b)(6). See De
Jesus-Ojeda, 515 F.3d at 443. Accordingly, the district court’s judgment is
AFFIRMED.
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