United States Court of Appeals

for the Fifth Circuit

No. 20-40206

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Jose Gutierrez, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:19-CR-1545-1

Before Clement, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:*

Jose Gutierrez appeals the 51-month sentence imposed by the district 

court following his jury conviction for conspiracy to transport an 

undocumented alien within the United States and transporting and 

attempting to transport an undocumented alien within the United States for 

* 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opinion should not be published and is not precedent except under the limited 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

November 5, 2020

Lyle W. Cayce

Clerk

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financial gain. According to Gutierrez, the district court erred in imposing 

an enhancement under U.S.S.G. § 2L1.1(b)(6) based on its finding that the 

offense involved intentionally or recklessly creating a substantial risk of death 

or serious bodily injury to the undocumented alien.

We review the district court’s interpretation and application of the 

Guidelines de novo and the district court’s factual findings for clear error. 

United States v. Barfield, 941 F.3d 757, 761 (5th Cir. 2019), cert. denied, 140 

S. Ct. 1282 (2020). The factual findings a district court makes in support of 

its decision to apply the § 2L1.1(b)(6) enhancement are reviewed for clear 

error. United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (per 

curiam). The clear-error standard is deferential and “only requires a factual 

finding to be plausible in light of the record as a whole.” Id.

In determining whether a § 2L1.1(b)(6) adjustment is warranted, we 

do not apply bright-line rules but “must engage in a fact-specific inquiry.”

United States v. Maldonado-Ochoa, 844 F.3d 534, 537 (5th Cir. 2016) (internal 

quotation marks and citation omitted). In United States v. Zuniga-Amezquita, 

468 F.3d 886, 889 (5th Cir. 2006), we provided a nonexhaustive list of five 

factors to consider when applying the adjustment: “the availability of oxygen, 

exposure to temperature extremes, the aliens’ ability to communicate with 

the driver of the vehicle, their ability to exit the vehicle quickly, and the 

danger to them if an accident occurs.”

The district court did not clearly err in overruling Gutierrez’s 

objection to the enhancement based on the factual findings contained in the 

presentence report. The alien was instructed to get into a toolbox in the back 

of Gutierrez’s pickup truck. The toolbox had two locks, one on each end; to 

open it from the inside, the alien would have had to open one end with his 

hands and the other end with his feet. In addition, the space inside the 

toolbox was limited, and the district court found there was no room for 

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movement inside the toolbox. Transporting a person in a manner that 

significantly hinders his ability to exit the vehicle quickly creates a substantial 

risk of death or serious injury. See id.; see also United States v. Rodriguez-Mesa, 

443 F.3d 397, 403 (5th Cir. 2006). Further, transporting the alien in the 

toolbox in the bed of the pickup truck created a danger to the alien in the 

event of an accident, even though no accident actually occurred. See United 

States v. Ruiz-Hernandez, 890 F.3d 202, 212 (5th Cir. 2018); see also 

Maldonado-Ochoa, 844 F.3d at 537 (affirming the application of § 2L1.1(b)(6) 

where the defendant “started to drive with unrestrained persons lying in the 

bed of his truck,” even though he was pulled over as soon as his vehicle began 

to move and no one was injured). The district court’s finding that 

Gutierrez’s actions created a substantial risk of death or serious bodily injury 

to the alien is plausible in view of the record as a whole and, therefore, is not 

clearly erroneous. See Rodriguez, 630 F.3d at 380.

AFFIRMED.

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