IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40506

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

ELIAS ESCOBAR-HERNANDEZ,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:13-CR-1148

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Elias Escobar-Hernandez appeals the sentence imposed following his 

guilty-plea conviction for conspiracy to harbor undocumented aliens within the 

United States. He argues that the district court erred in imposing a two-level 

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

intentionally or recklessly created a substantial risk of death or serious bodily 

injury to the aliens. He asserts that the district court erred in imposing this 

* 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 13, 2015

Lyle W. Cayce

Clerk

 

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No. 14-40506

enhancement because the aliens were not held in crowded or unsafe conditions 

for a long time period and there was no evidence that the aliens were actually 

uncomfortable or feared for their physical safety.

Although Escobar-Hernandez raises a new argument challenging the 

enhancement, he is essentially attempting to distinguish the cases in which 

this court has upheld the application of this enhancement. His objection to the 

enhancement was sufficient to preserve this issue for appeal. See United States 

v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). We need not determine whether de 

novo review or the more deferential clear-error review applies because we 

would affirm under either standard of review.

Section 2L1.1(b)(6) provides that a defendant’s offense level should be 

increased two levels “[i]f the offense involved intentionally or recklessly 

creating a substantial risk of death or serious bodily injury to another person.” 

The commentary to §2L1.2(b)(6), in the 2013 Guidelines under which EscobarHernandez was sentenced, defined reckless conduct as follows:

Reckless conduct to which the adjustment . . . applies includes a 

wide variety of conduct (e.g., transporting persons in the trunk or 

engine compartment of a motor vehicle, carrying substantially 

more passengers than the rated capacity of a motor vehicle or 

vessel, or harboring persons in a crowded, dangerous, or inhumane 

condition). 

U.S.S.G. § 2L1.1 cmt. n.5 (2013).

The district court did not err in applying the § 2L1.1(b)(6) enhancement 

based on its finding that the aliens were housed in crowded, dangerous, or

inhumane conditions. Eight of the aliens were housed in a 10 x 10 foot 

detached room with one bed, one window, no bathroom, and no air conditioning 

during July when the high temperatures were 97 to 99 degrees. The aliens 

were instructed not to be loud, not to open the door (although the door was 

open), and not to go outside. This court has upheld the application of this 

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No. 14-40506

enhancement under similar circumstances. See United States v. JassoVasquez, 579 F. App’x 267, 268 (5th Cir. 2014) (upholding enhancement where 

132 aliens were held in a locked 400 to 600 square foot house, with no 

electricity, no running water that was drinkable, and only one bathroom when 

the temperature was approximately 85 degrees); United States v. MagallanRodriguez, 530 F. App’x 318, 319-22 (5th Cir. 2013) (upholding enhancement 

where approximately 47 aliens were held in several small buildings for many 

weeks); United States v. Teran, 236 F. App’x 82, 83-84 (5th Cir. 2007) 

(upholding enhancement where approximately 69 aliens were held in two 

bedrooms of a house with no running water, no air conditioning, and limited 

access to drinking water and restrooms). This court has not held that 

§ 2L1.1(b)(6) requires the Government to prove that aliens were held in such 

dangerous conditions for long periods of time. Therefore, Escobar-Hernandez 

has not shown that the district court erred in imposing the § 2L1.1(b)(6) 

enhancement in the instant case. See Jasso-Vasquez, 579 F. App’x at 268; 

Magallan-Rodriguez, 530 F. App’x at 319-22; Teran, 236 F. App’x at 83-84.

AFFIRMED. 

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