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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-11002

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RAFAEL BOCANEGRA-RODRIGUEZ

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:08-CR-31-1

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Rafael Bocanegra-Rodriguez (Bocanegra) appeals following his guilty plea

conviction for transporting illegal aliens and aiding and abetting. He argues

that the district court reversibly erred when it adjusted his offense level under

U.S.S.G. § 3C1.2 and § 2L1.1(b)(6) because both adjustments were based on the

same uninterrupted course of conduct. He argues that the risk caused by the

United States Court of Appeals

Fifth Circuit

F I L E D

June 24, 2009

Charles R. Fulbruge III

Clerk
No. 08-11002

2

conditions in the van and that posed by the manner in which the van was driven

during flight cannot be evaluated without reference to one another.

We review the district court’s application of the Guidelines de novo and its

findings of fact for clear error. United States v. Cuyler, 298 F.3d 387, 389 (5th

Cir. 2002). A district court’s reasonable inferences from the facts also are

reviewed for clear error. United States v. De Jesus-Ojeda, 515 F.3d 434, 442 (5th

Cir. 2008).

Double counting is prohibited under the Sentencing Guidelines only where

the guideline at issue expressly prohibits it. See United States v. Gaytan, 74

F.3d 545, 560 (5th Cir. 1996). In addressing whether multiple adjustments

constitute impermissible double counting, the focus should be “on the temporal

and spatial distinctiveness or separateness of the acts” in order to determine

whether the conduct involves “more than one culpable act.” United States v.

Gillyard, 261 F.3d 506, 511 (5th Cir. 2001).

A defendant receives an adjustment under § 2L1.1(b)(6) if the offense

conduct recklessly creates a risk of serious bodily injury to another person. A

defendant receives an § 3C1.2 adjustment if his flight from a law enforcement

recklessly creates a serious risk of bodily injury to another person. If the

conduct justifying the § 2L1.1(b)(6) adjustment is solely related to fleeing from

law enforcement, § 3C1.2 should not apply. See § 2L1.1, comment. (n.5). Thus,

where the § 2L1.1(b)(6) adjustment is based on conduct not solely related to

flight, the district court is not precluded from applying § 3C1.2.

The overcrowded conditions in the van posed a danger of a substantial risk

of serious injury to the aliens and to the unsecured infant, even in the event of

an ordinary traffic accident not caused by Bocanegra’s subsequent reckless

flight. Thus, the risk caused by the overcrowding was distinct from the risk

posed by Bocanegra’s reckless driving during flight. Furthermore, in addition

to endangering his passengers, Bocanegra’s reckless driving created a risk of
No. 08-11002

 Bocanegra’s reply contends that this point was never made before the district court. 1

However, the PSR Addendum states: “Aside from endangering the passengers in an

overcrowded van, the defendant fled from law enforcement, creating a substantial risk of

serious bodily injury or death.”

3

danger to people besides the van passengers. Because Bocanegra’s conduct 1

involved “more than one culpable act,” the district court did not commit

impermissible double counting in adjusting Bocanegra’s offense level under both

§ 2L1.1(b)(6) and § 3C1.2. See Gillyard, 261 F.3d at 511.

To the extent that Bocanegra’s argument may be construed as an implicit

challenge to the applicability of § 2B1.1(b)(6) made for the first time on appeal,

we perceive no plain error. See United States v. Baker, 538 F.3d 324, 332 (5th

Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). The district court did not plainly

err in determining that carrying 17 passengers in a van designed for 12

passengers created a risk of serious bodily injury. See United States v. Garza,

541 F.3d 290, 294 (5th Cir. 2008).

AFFIRMED.