* Judge of the International Court of Trade, sitting

by

designation.

** Pursuant to 5th C IR. 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determined that this opinion should not be published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 C IR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 99-50267

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GUADALUPE IBARRA-SANDOVAL

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court

For the Western District of Texas

(P-98-CR-232-2)

______________________________________________ May 8, 2000

Before POLITZ and DAVIS, Circuit Judges, and RESTANI *

, Judge.

DAVIS, Circuit Judge: **

Guadalupe Ibarra-Sandoval (“Ibarra”) pleaded guilty,

pursuant to a written plea agreement, to one count of

importation of marijuan a. Ibarra appeals her sentence,

contending that the dis trict court erred by increasing2

her offense level for using a minor to assist in the

commission of the offense.

Ibar ra was a passenger in a vehicle being driven by

her sister, Emma Torres-Sandoval (“Torres”), from Mexico

to the United States. United States Customs Agents

stopped the Torres vehicle at the Port of Entry in

Presidio, Texas. Torres’ three-month old daughter was

also a passenger in the vehicle. Upon inspection,

Customs Agents discovered 65.4kg of marijuana in a hidden

com partment inside the vehicle’s gas tank. When

questioned, Ibarra informed the agents that she and her

sister were each paid $3, 500 to transport the drugs to

Carlsbad, New Mexico. Torres denied any knowledge of the

marijuana.

In arriving at its sentence for Ibarra, the district

court accepted the probation officer’s recommendation in

t he PSR that Ibarra’s offense level be increased tw o

levels pursuant to U.S.S.G. § 3B1.4 for use or attempted

use of a juvenile during the offense. The district court

imposed a 30 month sentence of imprisonment.

A s the sole issue on appeal, Ibarra challenges this

two level increase. Ibarra contends that the increase3

contemplated by § 3B1.4 does not a pply simply because a

minor is present during an offense.

Sect ion 3B1.4, of the Federal Sentencing Guidelines

provides for an upward departure of two levels, “[i]f the

defendant used or attempted to use a person less than 18

years of age to commit the offense or assist in avoiding

detection of, or apprehension for, the offense ....”

Section 3B1.4 further states, in Application Note 1, that

“‘Used or attemp ted to use’ i ncludes directing,

commanding, encouraging, intimida ting, counseling,

training, procuring, re cruiting, or soliciting.”

(emphasis added). The commentary to the guidelines is

binding on this C ourt. S tinson v. United States

, 508

U.S. 36, 42 (1993).

The Sente n cing Commission’s use of the qualifying

term ‘includes’, plainly signals that t he enumerated

‘uses’ are not exclusive. Furthermore, Congress directed

the Sentencing Commission to promulgate guidelines to

provide for a sentence enhanceme nt for adults who

“ involve [] a minor in the commission of the offense.” 28

U.S.C.A. § 994, Historical and Statutory Not es (Supp.

1996) (emphasis added). When we read the guideline in4

light of this Congressional direct ive, the guideline is

broad enough to encompass circumstances w here adult

criminals benefit from a minor’s passive participation in

the criminal scheme.

Notwithstanding Ibarra’s arguments to the contrary,

we conclude that the district court was entitled to infer

that Ibarra and Torres transported the small child in the

vehicle as part of a strategy calculated to red uce the

chance that law enforcement agents would delay their trip

to make a careful inspection of the vehicle for drugs.

We conclude that this use of a child as a diversionary

tactic to transport drugs undetected across the border is

a ‘use’ of a minor under § 3B1.4.

Accordingly, the judgment of the district court is

AFFIRMED.*** Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322

sec. 140008(a)(1), 108 Stat. 1796, 2033.

  Pub.L. 103-322 sec. 140008(a)(2), 108 Stat. 1796, 2033.

** *** U.S.S.G. Appendix C, amend. 527 (1997).

5 POLITZ, Circuit Judge, dissenting:

I must respectfully dissent. As I read the record before us, it does not support

the challenged action of the trial court increasing Ibarra’s base offense computation

two levels under U.S.S.G. § 3B1.4 for the use or attempted use of a juvenile during

the offense charged.

In 1994 Congress d i rected the Sentencing Commission to “promulgate

guidelines or amend existing guidelines to provide that a defendant... shall receive

an appropriate sentence enhancement if the defenda nt involved a minor in the

commission of

the offense.” * ** It is my understanding that Congress further

instructed that the guidelines shall apply:

for any offense in relation to which the defendant has solicited,

procured, recruited, counseled, encouraged, trained, directed,

commanded, intimidated, or otherwise used or attempted to use any

person less than 18 years of age with the intent that the minor would

commit a Federal offense (emphasis added).  

Section 3B1.4 was enacted in response to that congressional directive. ** *** In the

case at bar, the mere presence in the vehicle of the three-month old baby, who is

not the defendant’ s child, without more, should not, in my opinion, be construed

as the proscribed involvement of a child in the drug-trafficking offense.

The United States contends that the wording of subsection (a)(1), “involved****** Id. (stating that § 3B1.4 was enacted in response to Congress’ directive but

in a slightly broader form).

******* For example, if the drugs had been discovered under or within the baby’s

car seat, or wrapped inside the baby’s clothing, my conclusion would be different.

But that is not the situation herein. There is no suggestion that Ibarra in any way

attempted to use the child as a screen or to accelerate the inspection when stopped

by the agents. In addition, upon questioning Ibarra readily admitted her involvement.

******** United States v. Hull, 160 F.3d 265 (5th Cir. 1998) cert. denied, Hull v.

United States, 119 S. Ct. 1091 (1999) (prosecutor must prove facts relevant to

sentencing by a preponderance of the evidence); United States v. Huskey, 137

F.3d 283 (5th Cir. 1998) (same).

********* The Addendum to the PSI, written in response to Ibarra’s objections to the

two-level adjustment, stated that “[B]oth defendants chose to use an infant and

place it in ‘harm’s way.’ ” While this may be true, it is not, in my opinion, the

equivalent of using a child in the context of section 3B1.4. Whether other

provisions might have been appropriately applied if evidence had been adduced is

not before the court at this point.

6 a minor in the commission of the offense,” is broad enough to cover intentionally

using a minor as an innocent decoy. ****** Accepting same for present purposes, the

record herein, however, is wholly devo id of any evidence indicating that the

defendants intenti onally used the child to avoid detection of the marihuana or to

lessen suspicions by the border agents. The drugs were in a hidden compartment

in the vehicle’s gas tank. They were not located on or near the child’s person and

were not otherwise connected to the child in a ny way. ******* The government

offered no evidence relevant to the infant at the sentencing hearing. ******** Further,

the sentencing judge conceded that he did not know what Ibarra’s reasons were for

having the child present in the vehicle, simply observing that his resolution was

based on what often occurs in drug transportation cases. ********* I am forced to the7

conclusion that the trial judge erred in assuming that Ibarra used her three-month

old niece to avoid detection of, or apprehension for, th e crime. As such, the

imposition of a two-level i ncrease under section 3B1.4 was improper. I would

vacate and remand for resentencing.