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this opinion should not be published and is not precedent except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

April 4, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40272

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PHILLIS ANN ROGERS,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-866-ALL

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

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

Phyllis Ann Rogers appeals the concurrent 27-month sentences

she received following a jury trial on two counts of transporting

undocumented aliens in violation of 8 U.S.C. § 1324. The

district court imposed a sentence enhancement under U.S.S.G.

§ 2L1.1(b)(5) on the basis that Rogers transported the four

individuals in the rear cargo area of a minivan, covered in

newspaper and a layer of wrought iron and ceramic goods. Rogers

asserts that the enhancement was unwarranted because the aliens

were not exposed to the elements, had adequate oxygen, were able
No. 05-40272

-2-

to communicate with her, and easily could have extricated

themselves in an emergency. The Government asserts that, during

an accident or other sharp maneuver, the aliens could have been

injured or killed by flying wrought iron, trapped by the debris,

or overlooked by emergency personnel. The Government also notes

that the men were sweating profusely when the covering newspaper

was removed.

We review the district court’s application of the Guidelines

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

States v. Villanueva, 408 F.3d 193, 202, 203 n.9 (5th Cir.),

cert. denied, 126 S. Ct. 268 (2005). With respect to the

district court’s factual findings, we find no error. The court

relied upon the Presentence Report (PSR) in determining that the

enhancement was warranted. The facts contained in the PSR are

supported by the evidence in the record. Border patrol agents

testified during Rogers’s trial that the men were lying side by

side, surrounded by newspaper, and covered by “a bunch of”

wrought iron and ceramic items that limited their movement. The

agents testified that the men were “sweating a lot” when the 

newspaper was removed. In addition, the aliens testified by

deposition that boxes were placed on top of them.

The enhancement under § 2L1.1(b)(5) is warranted where “the

offense involved intentionally or recklessly creating a

substantial risk of death or serious bodily injury to another

person.” In United States v. Zuniga-Amezquita, 468 F.3d 886, 890
No. 05-40272

-3-

(5th Cir. 2006), we held that transporting aliens in the cargo

area of a van with boxes and luggage piled high around them

warranted the enhancement because the aliens’ ability to exit the

vehicle was impeded and the items could have struck them in an

accident. Id. We listed several non-exclusive factors to

consider in determining whether the enhancement is proper: 

(1) whether oxygen was available to the individuals being

transported; (2) their exposure to extreme temperatures; 

(3) their ability to communicate with the driver; (4) their

ability to exit the vehicle quickly; and (5) the danger to them

if an accident were to occur. Id. at 889.

The § 2L1.1(b)(5) enhancement was proper in this case. The

aliens were covered in stifling newspaper, and their movements

were restricted by the heavy iron and ceramics, which could have

become dangerous projectiles during an accident. Moreover, the

record shows that the rear door to the minivan was inoperable,

making a quick exit more difficult. See Zuniga-Amezquita, 468

F.3d at 890.

The judgment of the district court is AFFIRMED.