United States Court of Appeals

for the Fifth Circuit

No. 21-40557

United States of America, 

Plaintiff—Appellee,

versus

Esteban Ramirez, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:21-CR-444

Before Clement, Graves, and Costa, Circuit Judges.

Edith Brown Clement, Circuit Judge:

Esteban Ramirez pleaded guilty to transporting an alien within the 

United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(B)(i). 

At sentencing, the district court enhanced his total offense level for reckless 

endangerment pursuant to § 2L1.1(b)(6) and for reckless endangerment 

while fleeing pursuant to § 3C1.2. Ramirez did not object and was sentenced 

at the bottom of the guideline range to 37 months of imprisonment. On 

appeal, Ramirez argues that the district court plainly erred by enhancing his 

total offense level pursuant to § 2L1.1(b)(6). We agree and accordingly 

vacate his sentence and remand for resentencing.

United States Court of Appeals

Fifth Circuit

FILED

June 14, 2022

Lyle W. Cayce

Clerk

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I.

On January 25, 2021, United States Customs and Border Protection 

(CBP) agents spotted a Dodge Avenger decelerating on a highway in San 

Manuel, Texas. The agents followed the car, noting that it was swerving 

between lanes, had an abnormal bounce, and was driving in tandem with a 

Chevrolet Silverado. The agents activated their emergency lights and 

attempted to stop the vehicle to conduct an immigration inspection. The 

vehicle initially stopped, allowing the agents to approach.

Upon arriving at the car, the agents found Ramirez in the driver’s seat, 

one passenger accompanying him in the front, and three unrestrained 

passengers in the back with an additional passenger laying across their laps. 

The agents asked Ramirez to turn off his car and surrender his keys. He fled 

instead. After turning around, Ramirez accelerated to somewhere between 

95 and 105 miles per hour. The agents followed Ramirez for 14 miles until he 

eventually crashed into a GMC Sierra after running a red light.

Immediately following the collision, the four passengers in the back 

fled on foot. None of them were caught. Ramirez also attempted to flee but 

was quickly apprehended. Meanwhile, the front passenger, Ruben 

Hernandez (an undocumented alien), remained in the vehicle until he was 

transported to the hospital where he was evaluated for a concussion. Ramirez 

and the driver of the GMC Sierra, J.C., were also transported to the hospital 

for evaluation and treatment. Ramirez and Hernandez avoided serious 

injury, but J.C. suffered three herniated discs.

On February 23, 2021, a federal grand jury indicted Ramirez, charging 

him with: (1) conspiracy to transport aliens within the United States in 

violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I), and (a)(1)(B)(i); 

and (2) transporting an alien within the United States in violation of 

§§ 1324(a)(1)(A)(ii) and (a)(1)(B)(i). Ramirez entered a guilty plea to count 

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two of the indictment after the government agreed to dismiss count one and 

recommend a two-level downward departure for acceptance of responsibility 

pursuant to U.S.S.G. § 3E1.1(a). The district court accepted Ramirez’ plea 

and ordered the United States Probation Office (USPO) to prepare a 

presentence report (PSR).

The PSR discussed the previously addressed facts and included postarrest testimony from Ramirez, Hernandez, a CBP agent, and J.C. Ramirez 

testified that once he and his passengers were being pursued, Hernandez 

asked him to “open the door so he could jump out.” Ramirez refused, given 

that they were driving at approximately 100 miles per hour. Shortly 

thereafter, he crashed into J.C. He claimed that the collision occurred 

because the agents following him were distracting him, which took his 

attention away from the red light. He further testified that the airbags 

deployed, and that although he believed Hernandez was unconscious 

following the collision, he later saw him standing, though he looked to be in 

shock.

Hernandez also gave a statement. According to him, he was picked 

up from a stash house and driven toward Houston. He recalled seeing 

emergency lights, not fearing for his life or thinking that Ramirez was driving 

too fast, and hearing Ramirez tell him and the others to remain calm. He 

could not remember anything else due to his head injury.

Finally, the PSR included statements from a CBP agent and J.C. 

According to the agent, “the roadways were dry and dark” on the relevant 

evening. Traffic was also light. According to J.C., his three herniated discs 

required him to attend continuing physical rehabilitation.

At sentencing, the district court adopted the PSR, amending it only to 

grant a third-level reduction for acceptance of responsibility. According to 

the PSR, Ramirez had a total offense level of 22, which was amended to 21 

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following the third-level reduction for acceptance of responsibility. His total 

offense level included a base offense level of 12 with the following departures: 

(1) an enhancement to level 18 pursuant to § 2L1.1(b)(6) (reckless 

endangerment); (2) a four-level enhancement pursuant to § 2L1.1(b)(7)(B) 

(serious bodily injury); (3) a two-level enhancement pursuant to § 3C1.2 

(reckless endangerment while fleeing); and (4) the three-level reduction 

pursuant to § 3E1.1(a) (acceptance of responsibility). The PSR calculated his 

criminal history score at zero and his criminal history category at 1. Based on 

these calculations, his guideline range was 37 to 46 months of imprisonment.

Ramirez objected to the four-level enhancement for serious bodily 

injury under § 2L1.1(b)(7)(B). The district court overruled his objection 

because of J.C.’s injuries. Likewise, he sought a variance pursuant to 18 

U.S.C. § 3553(a), which the district court denied. Instead, the district court 

stated: “But I will sentence you at the low end to a term of 37 months in 

custody.” After the district court entered its judgment, Ramirez timely 

appealed, arguing that the district court erroneously enhanced his sentence 

under § 2L1.1(b)(6).

II.

Ramirez did not object to the district court’s § 2L1.1(b)(6) 

enhancement; thus, we only review for plain error. United States v. 

Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To demonstrate 

plain error, Ramirez must show: (1) an error; (2) that is clear or obvious, 

rather than subject to reasonable dispute; and (3) that affects his substantial 

rights. United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en 

banc) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). If he can 

establish the first three prongs, then we have “the discretion to remedy the 

error—discretion which ought to be exercised only if the error seriously 

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affect[s] the fairness, integrity or public reputation of judicial proceedings.” 

Escalante-Reyes, 689 F.3d at 419 (quoting Puckett, 556 U.S. at 135). 

III.

We hold that the district court plainly erred by enhancing Ramirez’ 

total offense level pursuant to § 2L1.1(b)(6). To begin, we must initially 

consider the interplay between § 2L1.1(b)(6) and § 3C1.2 because the district 

court enhanced Ramirez’ sentence under both provisions. Pursuant to 

§ 2L1.1(b)(6), a defendant convicted of transporting an unlawful alien 

receives a sentencing enhancement if “the offense involved intentionally or 

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

another person.” According to the commentary for this provision, courts are 

not to apply a § 3C1.2 (reckless endangerment during flight) enhancement in 

addition to a § 2L1.1(b)(6) enhancement if the latter is invoked “solely on the 

basis of conduct related to fleeing from a law enforcement officer.” § 2L1.1 

cmt. n.3. 

Here, in support of the § 2L1.1(b)(6) enhancement, the PSR cited the 

CBP agents’ findings that Ramirez was transporting five undocumented 

aliens, four of whom were unrestrained, plus himself in a vehicle with a 

seating capacity of five. In support of the § 3C1.2 enhancement, the PSR 

cited the 14-mile chase where Ramirez reached speeds of up to 105 miles per 

hour at night. Because the district court enhanced Ramirez’ sentence under 

both provisions, the § 2L1.1(b)(6) enhancement cannot be based on his

conduct while fleeing from the CBP agents. See § 2L1.1 cmt. n.3. Thus, any 

support for the § 2L1.1(b)(6) enhancement must come from his pre-flight 

activity.

Ramirez’ pre-flight activity does not support a § 2L1.1(b)(6) 

enhancement, even under plain error review. When determining whether a 

§ 2L1.1(b)(6) enhancement is appropriate, we consider five non-exhaustive 

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factors: “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.” 

United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). This 

is a fact-specific inquiry, United States v. Mata, 624 F.3d 170, 174 (5th Cir. 

2010) (per curiam), that must uncover “a substantial risk of death or serious 

bodily injury.” Zuniga-Amezquita, 468 F.3d at 889 (emphasis added).

There is no indication from the undisputed facts that any of the 

undocumented immigrants faced a lack of oxygen, exposure to temperature 

extremes, an inability to communicate with Ramirez, or an inability to exit 

the vehicle quickly. As for the fifth factor, we have been clear: the danger 

associated with not wearing a seatbelt is insufficient to trigger § 2L1.1(b)(6). 

See Zuniga-Amezquita, 468 F.3d at 890; see also United States v. CasteloPalma, 30 F.4th 284, 288–89 (5th Cir. 2022) (“[T]he record does not 

demonstrate that the risk to the aliens was any greater than the risk to an 

ordinary passenger not wearing a seatbelt.”). Aside from the lack of 

seatbelts, there was some overcrowding in the vehicle. But six passengers in 

a vehicle rated for five is certainly not “severe.” See, e.g., United States v. 

Solis-Garcia, 420 F.3d 511, 515 (5th Cir. 2005) (holding that the defendant’s 

transportation of “eight individuals in a minivan designed to seat seven”—

even worse, a minivan with only four seats—did not constitute “severe” 

overcrowding).

Lacking support from the Zuniga-Amezquita factors, the government 

argues that the enhancement is still proper because of other “aggravating 

factors.” Specifically, the government notes that one unrestrained passenger 

was laying horizontally across the laps of the other back-seat passengers; 

Ramirez was traveling over 60 miles-per-hour pre-flight at night; and 

Ramirez was driving “recklessly” and swerving between lanes in tandem 

with another vehicle all while lacking a driver’s license. The government 

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concludes that the totality of the circumstances supports the district court’s 

conclusion that Ramirez created a substantial risk of serious bodily injury or 

death for his passengers. We are unpersuaded. 

First, Solis-Garcia already held that a § 2L1.1(b)(6) enhancement was 

improper even when the undocumented aliens there were in an unsecured, 

prone position in the cargo area of a minivan while traveling at highway

speeds. 420 F.3d at 513. Further, Castelo-Palma reiterated that transporting 

aliens at night does not create a per se substantial risk of serious injury or 

death to another person. 30 F.4th at 288. Thus, that one undocumented 

immigrant was prone, and Ramirez was driving at highway speeds at night, is 

insufficient for a § 2L1.1(b)(6) enhancement. The question, then, is whether 

the additional facts—the swerving, driving in tandem, and lack of a driver’s 

license—change the analysis. We think not.

To be sure, swerving between lanes while driving in tandem with 

another vehicle can be dangerous, particularly when this occurs at night with 

unrestrained passengers on a highway. But this narrative omits critical facts. 

Yes, it was nighttime, but the roads were dry, traffic was light, and Ramirez 

was driving under the posted speed limit. Further, unlike cases where we 

have affirmed an enhancement based on reckless driving, Ramirez was not 

speeding, off-roading, fleeing—at the relevant time—or the like. See, e.g., 

United States v. Rojas-Mendoza, 456 F. App’x 477, 479–80 (5th Cir. 2012) 

(per curiam) (unpublished); United States v. Trujillo-Reyes, 318 F. App’x 286, 

288 (5th Cir. 2009) (per curiam) (unpublished); United States v. Aguirre, 354 

F. App’x 916, 920 (5th Cir. 2009) (per curiam) (unpublished). Ramirez’ 

conduct was certainly unsafe, but that does not mean that he created a 

substantial risk of death or serious bodily injury. Finding otherwise was plain 

error.

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Ramirez has also shown “a reasonable probability that, but for the 

error, the outcome of the proceeding would have been different.” United 

States v. Nino-Carreon, 910 F.3d 194, 197 (5th Cir. 2018) (quoting RosalesMireles v. United States, 138 S. Ct. 1897, 1904–05 (2018)). If the district court 

had not enhanced Ramirez’ sentence under § 2L1.1(b)(6) and § 3C1.2, there 

would have been two other possible sentencing outcomes: (1) the district 

court could have applied § 2L1.1(b)(6) to all his conduct, foregoing the 

§ 3C1.2 enhancement altogether; or (2) the district court could have only 

applied the § 3C1.2 enhancement. Under option one, Ramirez’ guideline 

range would have been 30 to 37 months. Under option two, his guideline 

range would have been 18 to 24 months. Ramirez’ actual sentence of 37 

months of imprisonment, which was explicitly adopted as a sentence at the 

bottom of the guideline range, is at the top of the guideline range for an option 

one sentence and outside the guideline range for an option two sentence. 

Such discrepancy plainly shows that the district court’s error affected 

Ramirez’ substantial rights and that relief should be granted. See UrbinaFuentes, 900 F.3d at 699 (5th Cir. 2018) (“[I]t is clear from Rosales-Mireles

that the Court expects relief to ‘ordinar[il]y’ be available to defendants in 

sentencing cases when the first three prongs were met.” (quoting RosalesMireles, 138 S. Ct. at 1911)). 

* * * 

The district court’s sentence is VACATED, and the case is 

REMANDED for resentencing. 

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