United States Court of Appeals

for the Fifth Circuit

No. 21-40713

United States of America, 

Plaintiff—Appellee,

versus

Franklin Johnson, Jr., 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:21-CR-244-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Franklin Johnson, Jr., pleaded guilty to conspiring to transport and 

transporting unlawful aliens within the United States for the purpose of 

commercial advantage and private financial gain. See 8 U.S.C. 

§ 1324(a)(1)(A)(ii), (A)(v)(I), (B)(i). Johnson was arrested following a 

border-patrol checkpoint inspection. During the inspection, agents 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 21, 2022

Lyle W. Cayce

Clerk

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discovered that Johnson was transporting 96 undocumented aliens. One of 

those aliens was concealed under some luggage in Johnson’s cab. The other 

ninety-five were hidden inside Johnson’s trailer. The district courtsentenced 

Johnson at the bottom of the advisory guidelines range to 46 months of 

imprisonment and three years of supervised release.

In his sole argument on appeal, Johnson argues for the first time that 

the district court plainly erred by applying a two-level enhancement under 

U.S.S.G. § 2L1.1(b)(6) because there was not sufficient evidence or a

plausible basis on which the enhancement could be applied. Because Johnson 

did not object to the district court’s application of § 2L1.1(b)(6), his 

challenge is reviewed for plain error. See, e.g., United States v. Broussard, 669 

F.3d 537, 546 (5th Cir. 2012). To prevail on plain-error review, Johnson must 

identify (1) a forfeited error (2) that is clear or obvious, rather than subject to 

reasonable dispute, and (3) that affects his substantial rights. See Puckett v. 

United States, 556 U.S. 129, 135 (2009). If he satisfies the first three 

requirements, we may remedy the error. Still, we should do so only if the 

error “seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings.” Id. (internal quotation marks and citation omitted).

Section 2L1.1(b)(6) provides for an increase in the defendant’s base 

offense level for smuggling, transporting, or harboring an unlawful alien—in 

this case, an increase of two levels—if “the offense involved intentionally or 

recklessly creating a substantial risk of death or serious bodily injury to

another person.” § 2L1.1(b)(6). In support of the enhancement, the 

presentence reportstated thatJohnson’s trailer was not designed to transport 

passengers, let alone ninety-five of them; that the aliens inside Johnson’s 

trailer lacked seatbelts; that they could not communicate with Johnson; that 

they would not have been able to extricate themselves from the trailer after

an accident; and that there was “no free flow of air” in the trailer. Johnson 

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neither rebutted those findings, which the district court adopted, nor 

presented any evidence relevant to the enhancement.

Under the circumstances, the district court’s decision to apply the 

§ 2L1.1(b)(6) enhancement is at most subject to reasonable dispute, so any 

error is not clear or obvious. See Puckett, 556 U.S. at 135; United States v. 

Garza, 587 F.3d 304, 310–11 (5th Cir. 2009) (per curiam). Accordingly, we 

AFFIRM the district court’s judgment.

Case: 21-40713 Document: 00516246926 Page: 3 Date Filed: 03/21/2022