United States v. Cunningham

Case: 22-50092 Document: 00516702410 Page: 1 Date Filed: 04/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 5, 2023
No. 22-50092
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Brandon Corey Cunningham,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-2051-1
______________________________
Before King, Jones, and Duncan, Circuit Judges.
Per Curiam:*
Brandon Cunningham was convicted of conspiring to transport illegal
aliens and sentenced to 45 months in prison. On appeal, Cunningham argues
his sentence was wrongly enhanced under U.S.S.G. § 2L1.1(b)(6) for
intentionally or recklessly creating a substantial risk of death or serious bodily
injury. We affirm.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50092 Document: 00516702410 Page: 2 Date Filed: 04/05/2023
No. 22-50092
I.
In the middle of the night on August 10, 2019, United States Border
Patrol agents saw a Jeep Grand Cherokee pass by, abruptly turn around, and
come to a stop near the agents. The agents made contact with the Jeep,
identifying Cunningham as the driver and co-defendant Angel Alexander De
Leon as the passenger. The agents observed that the Jeep’s back seats were
folded down flat and heard a cell phone ringing in the brush nearby. After one
of the agents pointed a flashlight towards the ringing sound, De Leon took off
running, while telling Cunningham to “run, motherf--ker, run.”
Cunningham remained seated and was detained.
Upon locating the ringing phone, the agents discovered “WhatsApp”
messages with GPS coordinates to a location a few hundred yards away. They
went there and found several people hunkered down in the brush. The people
scattered once the agents identified themselves as Border Patrol. One
woman, who admitted to being a Guatemalan citizen illegally present in the
United States, was apprehended. And after a brief search, three more of the
individuals—also illegal aliens—were apprehended. On the way to the
Border Patrol station, the agents found De Leon walking along the road and
placed him under arrest as well.
Border Patrol questioned the apprehended aliens, who all explained
that they paid $3,000 to $5,000 each to be smuggled into the United States.
Apparently, their foot guide had disappeared and abandoned the group alone
in the brush. The group became lost and ran out of water, with one woman
becoming ill and passing out. The investigation revealed that the group had
not been in contact with the individuals who were going to pick them up and
were unable to identify them. Eventually, though, agents located phone calls
and text messages between Cunningham and De Leon, as well as between
Cunningham and an unidentified individual—all of which referred to the
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illegal alien smuggling venture. As it turns out, Cunningham was going to be
paid $3,500 and De Leon $400 to drive the aliens to a Sonic restaurant in
Uvalde, Texas.
Cunningham insisted on a jury trial. At trial, further details of the
scheme came to light. De Leon testified that, on the day he and Cunningham
were arrested, he had taken cocaine and Cunningham had consumed sleeping
pills. He reported that when they pulled over to the side where they
subsequently encountered the Border Patrol agents, they were supposed to
switch drivers. The reason for this was that Cunningham had been swerving
in the vehicle after taking the sleeping pills. The jury found Cunningham
guilty.
The Presentence Investigation Report (PSR) assigned Cunningham a
total offense level of 20, which included a six-point increase under U.S.S.G.
§ 2L1.1(b)(6). That provision calls for a sentencing enhancement when “the
offense involved intentionally or recklessly creating a substantial risk of death
or serious bodily injury.” U.S.S.G. § 2L1.1(b)(6). The PSR explained that
factors contributing to this designation included: the foot guide’s
disappearance; the group’s running out of water and an alien’s becoming ill;
and the fact that De Leon and Cunningham were under the influence of
cocaine and sleep medication, respectively. This yielded a guideline
imprisonment range of 41 to 51 months.
Cunningham filed written objections to the PSR, which he re-urged at
sentencing. He argued that the § 2L1.1(b)(6) enhancement should not apply
because neither he nor his co-defendant caused the illegal aliens to run out of
water or become ill. He also observed that he had taken only the sleep
medication, not the cocaine. The district court overruled Cunningham’s
objections. While not disclaiming reliance on the other factors underlying the
PSR’s § 2L1.1(b)(6) enhancement, the court focused primarily on
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Cunningham’s “being under the influence and driving while intoxicated.”
Cunningham received a within-guidelines sentence of 45 months in prison,
along with three years of supervised release.
Cunningham timely appealed.
II.
“We review a district court’s interpretation or application of the
Sentencing Guidelines de novo, and its factual findings for clear error.”
United States v. Muniz, 803 F.3d 709, 712 (5th Cir. 2015). Any reasonable
inferences drawn from these factual findings are reviewed for clear error as
well. United States v. Ramos-Delgado, 763 F.3d 398, 400 (5th Cir. 2014).
“Under the clearly erroneous standard, we will uphold a finding so long as it
is plausible in light of the record as a whole.” Ibid. (quoting United States v.
Ekanem, 555 F.3d 172, 175 (5th Cir. 2009)). Sentencing enhancements must
be proven by a preponderance of the evidence. United States v. Luyten, 966
F.3d 329, 332 (5th Cir. 2020). And “[w]e may affirm on any ground
supported by the record.” Ibid.III.
Section 2L1.1(b)(6) of the Sentencing Guidelines provides a two-level
enhancement to the base offense level for smuggling, transporting, or
harboring an illegal alien if the offense “involved intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another
person.” U.S.S.G. § 2L1.1(b)(6). But where, as here, the resulting offense
level is less than level 18, the offense level is increased to 18. Ibid.
The commentary to this guideline provides non-exhaustive and
illustrative examples of conduct warranting the enhancement. Luyten, 966
F.3d at 333. These examples include:
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[1] transporting persons in the trunk or engine compartment of
a motor vehicle;
[2] carrying substantially more passengers than the rated
capacity of a motor vehicle or vessel;
[3] harboring persons in a crowded, dangerous, or inhumane
condition; or
[4] guiding persons through, or abandoning persons in, a
dangerous or remote geographic area without adequate food,
water, clothing, or protection from the elements.
U.S.S.G. § 2L1.1 cmt. n.3. Although the commentary and caselaw can
provide useful examples such as these, this court has “avoided creating
bright-line rules for this provision.” United States v. Maldonado-Ochoa, 844
F.3d 534, 537 (5th Cir. 2016). This is because applying § 2L1.1(b)(6)
“requires a fact-specific inquiry.” United States v. Mata, 624 F.3d 170, 174
(5th Cir. 2010) (quoting United States v. Zuniga-Amezquita, 468 F.3d 886,
889 (5th Cir. 2006)). The provision is intended, after all, to apply to “a wide
variety of conduct.” Ibid. (quoting U.S. Sent’g Guidelines Manual
§ 2L1.1 cmt. 5 (U.S. Sent’g Comm’n 2009)). So, while we consider
examples, we focus primarily on the “specifics of the situation.” United
States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir. 2008).
Cunningham argues that the district court erred by adopting a per se
rule that merely ingesting a sleep aid creates a substantial risk of death or
serious bodily injury. He relies primarily on Mateo Garza, in which the
district court “premised its ruling on the notion that transporting aliens
through the brush necessarily and always involves subjecting them to a
substantial risk of death or serious bodily injury.” Ibid. Our court responded
that it was “not enough to say . . . that traversing an entire geographical
region is inherently dangerous.” Ibid. Other facts, such as the heat, if
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considered in tandem, may have justified the enhancement. See id. at 295.
But because “[t]he court did not specifically base its sentence on those facts
but instead on the very fact of traveling through the brush,” our court found
that relying on a single factor improperly created a per se rule, and so reversed.
Ibid. Cunningham analogizes Mateo Garza’s logic to this case, arguing the
district court inappropriately created a per se rule focused on his taking sleep
aids to the exclusion of any other factor.
We disagree. The district court did not create a per se rule about sleep
aids alone but rather considered that fact as applied to the specific contours
of this case. See United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005)
(“Defining the contours of this enhancement is dependent upon carefully
applying the words of the guideline in a case-specific analysis.”). For
example, the district court observed that, after Cunningham took the sleep
aid, “he was starting to fall asleep and he was swerving on the road.” In other
words, the sleep aid actually had an effect on Cunningham, which resulted in
his dangerous driving. Cf. Begay v. United States, 553 U.S. 137, 141 (2008)
(“Drunk driving is an extremely dangerous crime.”). What’s more, contrary
to Cunningham’s suggestions, the district court did not disclaim reliance on
other factors identified in the PSR—including the foot guide’s
disappearance, the aliens’ running out of water, and an alien’s becoming ill.
The district court only stated that it was relying on the “driving while
intoxicated more than anything” and that it was “not so much relying on” the
other factors. It did not disclaim them altogether. Accordingly, we reject
Cunningham’s argument.
Cunningham further argues that there is insufficient evidence to
suggest that his conduct created a substantial risk of death or serious bodily
harm. He cites the PSR, which stated that “Cunningham began to fall asleep
and was swerving on the road, and [the co-defendants] pulled over to the side
where they were subsequently encountered by [Border Patrol] agents.”
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Cunningham suggests this is not enough because he “was not speeding, off-
roading, fleeing . . . or the like.” United States v. Ramirez, 37 F.4th 233, 237
(5th Cir. 2022) (finding an application of § 2L1.1(b)(6) to be improper). Nor
were there illegal aliens in the Jeep at the time of the misconduct.
We again disagree. “The actual results of the defendant’s conduct are
irrelevant.” United States v. Ruiz-Hernandez, 890 F.3d 202, 212 (5th Cir.
2018). What matters is the risk of harm, not actual harm. Ibid. (“[T]he
enhancement applies for creating a risk of harm; no harm at all need actually
occur to warrant its application.”). But for the Border Patrol’s intervention,
Cunningham would have presumably continued to transport the illegal aliens
to their destination while swerving and nodding off late at night. That
Cunningham and De Leon intended to switch driving duties only adds to the
risks; De Leon’s driving would likely have been similarly impaired by his
cocaine use. Accordingly, the district court did not clearly err in enhancing
Cunningham’s sentence under § 2L1.1(b)(6).
AFFIRMED.
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