* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

July 20, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40528

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CELESTINO YANEZ-FLORES,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:02-CR-377-2

--------------------

Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Celestino Yanez-Flores (Yanez) appeals from his conviction

of conspiracy to transport aliens for private financial gain. He

contends, for the first time on appeal, that the district court

erred in light of United States v. Booker, 543 U.S. 220 (2005),

by relying on judicially made factual findings regarding his

offense level adjustment for recklessly creating a substantial

risk of death or serious bodily injury to the aliens that were

transported by the conspiracy of which he was a member. He
No. 05-40528

-2-

further contends that the district court erred by adjusting his

offense level for recklessly creating a substantial risk of death

or serious bodily injury.

The district court noted that the recommended sentence in

Yanez’s case was 37 months of imprisonment. The district court

chose a 41-month sentence because the scope of the conspiracy and

Yanez’s level of involvement warranted a sentence at the high end

of the guideline sentencing range. Yanez has not shown that the

district court would have reached a different result under an

advisory sentencing scheme and, therefore, has not demonstrated

reversible plain error. See United States v. Mares, 402 F.3d

520, 521 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

Yanez bases his argument against the reckless endangerment

adjustment on the lack of evidence in the record showing that the

aliens transported in groups of up to 30 in the back of extendedcab trucks were unrestrained. He argues that the district court

inferred from the fact that the aliens were transported in the

beds of trucks that the aliens were unrestrained, then inferred

that, because they were unrestrained, the aliens could easily be

thrown from the truck beds. Yanez objected on a different theory

in the district court; his reckless endangerment argument

therefore is reviewed for plain error. See United States v.

Sotelo, 97 F.3d 782, 793 (5th Cir. 1996).

“Questions of fact capable of resolution upon proper

objection at sentencing can never constitute plain error.” 
No. 05-40528

-3-

United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Whether

the aliens were restrained in the beds of the trucks is a factual

question that could have been resolved upon proper objection at

sentencing. Yanez cannot demonstrate plain error as to that

factual question. See id. Nor can Yanez demonstrate plain error

as to the question whether the district court erred by imposing

the reckless endangerment adjustment. See United States v.

Cuyler, 298 F.3d 387, 391 (5th Cir. 2002). 

AFFIRMED.