IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40933

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SERGIO DAVID BRIONES-MARIN,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:15-CR-239-1

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Sergio David Briones-Marin appeals his sentence for harboring 

undocumented aliens for financial gain in violation of 8 U.S.C. 

§ 1324(a)(1)(A)(iii), (a)(1)(A)(v)(II), and (a)(1)(B)(i). He complains that the 

district court erroneously applied the reckless-endangerment enhancement 

under U.S.S.G. § 2L1.1(b)(6) because the offense involved harboring 

undocumented aliens in a crowded, dangerous, or inhumane condition.

 

* 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

January 27, 2016

Lyle W. Cayce

Clerk

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No. 15-40933

2

This court reviews challenges to the application of the sentencing 

guidelines de novo. United States v. Torres, 601 F.3d 303, 305 (5th Cir. 2010) 

(per curiam).

Under § 2L1.1(b)(6), a defendant’s sentence for the offense of harboring 

an undocumented alien is enhanced if the offense involved “intentionally or 

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

another person.” The commentary to the provision explains that the 

enhancement applies to “a wide variety of conduct.” U.S.S.G. § 2L1.1 cmt. n.5. 

Examples of qualifying conduct include “harboring persons in a crowded, 

dangerous, or inhumane condition.” Id.

Briones-Marin harbored 27 undocumented aliens in a one-bedroom, onebathroom stash house. The house was sparsely furnished with only a sofa, 

kitchen table, and one air mattress. Briones-Marin slept on the lone air 

mattress, and the undocumented aliens slept on the floor with sheets. The 

house had running water and electricity. Border patrol agents found little food 

in the house, but there was evidence that food and water was being provided 

for the undocumented aliens. The undocumented aliens were in the house for 

several days, possibly up to 15 days. At the time the undocumented aliens 

were found, the temperature outside was a mild 70 degrees. None of the 

undocumented aliens requested medical treatment.

Briones-Marin argues that § 2L1.1(b)(6) requires proof of a specific 

danger in addition to overcrowding. But such a requirement would be 

inconsistent with the provision’s commentary, which lists the qualifying 

conditions as “crowded, dangerous, or inhumane.” § 2L1.1 cmt. n.5 (emphasis 

added). And this court has never announced such a requirement and has, in 

fact, rejected substantially similar arguments that such a requirement exists. 

See United States v. De La Cruz-Bautista, 607 F. App’x 373, 375 (5th Cir. 2015); 

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No. 15-40933

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United States v. Jasso-Vazquez, 579 F. App’x 267, 268 (5th Cir. 2014); United 

States v. Trevino, 532 F. App’x 552, 552 (5th Cir. 2013).

Still, application of the reckless-endangerment enhancement in this case 

is, as the district court observed, “a close call.” But even if the district court 

erred in applying the reckless-endangerment enhancement, its statements 

during sentencing that the enhancement did not affect the selected sentence—

an upward variance of 72 months of imprisonment—rendered any error 

harmless. “A procedural error during sentencing is harmless if the error did 

not affect the district court’s selection of the sentence imposed.” United States 

v. Garcia-Figueroa, 753 F.3d 179, 192 (5th Cir. 2014) (quotation marks and 

citation omitted).

The district court stated that it was “going to give the same sentence 

regardless of whether that overcrowding enhancement should or should not be 

applied.” The district court went on to explain that its chosen non-Guidelines 

sentence was appropriate given that there were “so many other greater 

influences on the [c]ourt’s sentence” under the [18 U.S.C.] § 3553(a) factors. In 

particular, the court focused on Briones-Marin’s sexual assault of two female 

undocumented aliens at the stash house.

Because the district court’s statements at sentencing demonstrate that 

the reckless-endangerment enhancement’s applicability did not affect its 

selected sentence, any error is harmless. See United States v. GutierrezMendez, 752 F.3d 418, 430 (5th Cir. 2014) (relying on similar statements to 

conclude that any error in the application of sentence enhancements was 

harmless).

For the foregoing reasons, we AFFIRM.

 Case: 15-40933 Document: 00513359203 Page: 3 Date Filed: 01/27/2016