United States v. Bateman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 7, 2007
No. 07-40168
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT E. BATEMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:06-CR-597-1
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Robert Bateman appeals the eighteen-month sentence resulting from his
guilty-plea conviction of one count of transporting an illegal alien for financial
*
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should not be published and is not precedent except under the limited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. 07-40168
gain in violation of 8 U.S.C. § 1324. For the first time, Bateman challenges the
finding that his transportation of nineteen aliens in the sleeper compartment of
his tractor-trailer was reckless endangerment under U.S.S.G. § 2L1.1(b)(5).
The government argues that Bateman waived this challenge because he
acknowledged the existence of the issue at sentencing but chose not to pursue
it. The record demonstrates that Bateman’s counsel was aware of the question
concerning the enhancement for reckless endangerment under § 2L1.1(b)(5) and
consciously forewent the issue when he expressly stated that he did not object
to the enhancement because he was aware of the district judge’s decisions up-
holding such enhancements. Accordingly, Bateman waived the right to contest
the enhancement, and the waived error is unreviewable. See United States v.
Arviso-Mata, 442 F.3d 382, 384 (5th Cir.), cert. denied, 126 S. Ct. 2309 (2006);
United States v. Dodson, 288 F.3d 153, 162 (5th Cir. 2002) .
Even if Bateman had not waived the issue, he has not shown that the in-
crease for reckless endangerment is plain error. See United States v. Reyna, 358
F.3d 344, 350-53 (5th Cir. 2004) (en banc). The record demonstrates that the
sleeper compartment was not large enough to hold nineteen persons safely and
was extremely hot. The aliens were sweating and breathing heavily because of
the conditions in the compartment. None was wearing a safety restraint, and
in the event of an accident the aliens were subject to a substantial risk of death
or serious bodily injury. See United States v. Angeles-Mendoza, 407 F.3d 742,
750-51 & nn.16-17 (5th Cir. 2005). Accordingly, the judgment is AFFIRMED.
2