IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40684

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARGARITO ALVARADO,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:16-CR-927-4

Before DENNIS, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Margarito Alvarado pleaded guilty to conspiring to transport 

undocumented aliens by means of a motor vehicle. The district court sentenced 

Alvarado to 70 months in prison and three years of supervised release. The 

district court ordered the sentence in the instant case to run consecutively to 

any sentence imposed in a then-ongoing failure to appear case.1 

 

* 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.

1 Alvarado failed to appear for his initially scheduled sentencing hearing in the instant 

case and was subsequently indicted for the offense of failure to appear under 18 U.S.C. 

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2018

Lyle W. Cayce

Clerk

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No. 17-40684

2

On appeal, Alvarado argues that the district court erred in (1) applying 

the reckless endangerment enhancement pursuant to U.S.S.G. § 2L1.1(b)(6); 

(2) holding him responsible and enhancing his sentence for smuggling, 

transporting, or harboring 100 or more undocumented aliens pursuant to 

§ 2L1.1(b)(2)(c); and (3) ordering that the sentence in the instant case run 

consecutively to the anticipated but not yet imposed sentence in the failure to 

appear case. 

Because Alvarado raised objections to the district court’s imposition of 

the sentencing enhancements pursuant to § 2L1.1(b)(6) and § 2L1.1(b)(2)(c), 

we review the district court’s application of the sentencing enhancements de 

novo and its factual findings for clear error. United States v. Villanueva, 408 

F.3d 193, 202-03 & n.9 (5th Cir. 2005). As long as a factual finding is plausible 

in light of the record as a whole, it is not clearly erroneous and should be 

upheld. United States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013). Absent 

rebuttal evidence, a sentencing court may rely on the presentence report and 

adopt its factual findings. Id. at 619. 

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

transporting 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.” We reject Alvarado’s assertions that the 

Government failed to prove that the conduct made the basis of the reckless 

endangerment enhancement was part of the conspiracy of which he was 

involved; that the conduct was not foreseeable to him; and that the conduct did 

not amount to reckless endangerment. See § 1B1.3(a)(1)(B); § 2L1.1, 

comment. (n.3). The presentence report, to which Alvarado offered no rebuttal 

 

§ 3146(b)(2). The parties and the record before us provide no further information on the 

outcome of this indictment or whether proceedings are still ongoing. 

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No. 17-40684

3

evidence, and the testimony at the sentencing hearing established that aliens 

were transported, during the term of the conspiracy of which Alvarado was 

involved, in vehicles in an unsafe manner and were, at times, required to travel 

through the brush often without adequate food or water. See Alaniz, 726 F.3d 

at 619; § 2L1.1(b)(6), comment. (n.3); United States v. Cuyler, 298 F.3d 387, 

391 (5th Cir. 2002); United States v. Garcia-Guerrero, 313 F.3d 892, 896-97 

(5th Cir. 2002); United States v. De Jesus-Ojeda, 515 F.3d 434, 443 (5th Cir. 

2008). Thus, the district court did not clearly err in applying the enhancement. 

See Alaniz, 726 F.3d at 618.

Section 2L1.1(b)(2) provides for a nine-level enhancement if the offense 

involved the smuggling, transporting, or harboring of 100 or more aliens. The 

presentence report’s recitation of facts, which were not rebutted by Alvarado 

and which were adopted by the district court, showed that it was plausible that 

the offense involved 100 or more aliens. See Alaniz, 726 F.3d at 618. Thus, 

Alvarado has not shown clear error in connection with the district court’s 

finding concerning the number of aliens involved with his offense. See id.

Lastly, we reject Alvarado’s contention that the district court erred in 

ordering that the sentence in the instance case run consecutively to the 

anticipated but not yet imposed sentence in the failure to appear case. Because 

Alvarado did not object, we review for plain error. See United States v. 

Broussard, 669 F.3d 537, 546 (5th Cir. 2012). The failure-to-appear statute 

mandates that the term of imprisonment for that offense “shall be consecutive 

to the sentence of imprisonment for any other offense.” 18 U.S.C. § 3146 (b)(2); 

see United States v. Packer, 70 F.3d 357, 360 (5th Cir. 1995). Thus, no error, 

plain or otherwise, has been shown based on the explicit language of 

§ 3146(b)(2). The judgment of the district court is AFFIRMED.

AFFIRMED.

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