IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40346

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JEFF VINCENT GRAINGER,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:18-CR-549-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.

PER CURIAM:*

Jeff Vincent Grainger appeals the 42-month sentence imposed following 

his conviction of transporting an undocumented alien, who, the record evidence 

showed, Grainger transported in a space below the toolbox located in the

uncovered bed of his pickup truck. He contends that the district court erred by 

imposing a U.S.S.G. § 2L1.1(b)(6) enhancement because the offense involved 

* 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

February 28, 2020

Lyle W. Cayce

Clerk

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the intentional or reckless creation of a substantial risk of death or serious 

bodily injury to the alien being transported.

We review the district court’s application of § 2L1.1(b)(6) de novo. United 

States v. Maldonado-Ochoa, 844 F.3d 534, 536 (5th Cir. 2016). The 

Government has the burden of proving, by a preponderance of the evidence, 

the facts necessary to support the enhancement, and this court applies a 

deferential clear error standard of review to the district court’s fact findings 

supporting the enhancement. United States v. Rodriguez, 630 F.3d 377, 380 

(5th Cir. 2011).

In determining whether a § 2L1.1(b)(6) adjustment is warranted, we do 

not apply bright-line rules but “must engage in a fact-specific inquiry.” 

Maldonado-Ochoa, 844 F.3d at 537 (internal quotation marks and citation 

omitted). We have articulated a five-factor test based on the following nonexhaustive list of factors: (1) the availability of oxygen; (2) the exposure to 

temperature extremes; (3) the aliens’ ability to communicate with the driver of 

the vehicle; (4) the aliens’ ability to exit the vehicle quickly; and (5) the danger 

to the aliens if an accident occurs. United States v. Zuniga-Amezquita, 468 

F.3d 886, 889 & n.4 (5th Cir. 2006). 

We have repeatedly held that the transportation of unrestrained aliens

in pickup-truck beds without camper shells is “inherently dangerous” and 

warrants a § 2L1.1(b)(6) enhancement. Maldonado-Ochoa, 844 F.3d at 537. 

Although Grainger contends that his case is distinguishable because the alien 

travelled in the bed only briefly and for a short distance, this court has 

specifically rejected such arguments. See Maldonado-Ochoa 844 F.3d at 537-

38.

In addition, Grainger fails to show that the district court clearly erred by 

adopting the factual findings contained in the presentence report, which stated 

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that the temperature was 97 degrees Fahrenheit on the day at issue, and by 

relying upon photographic evidence introduced by the Government showing 

that the temperature in Grainger’s truck bed registered approximately 102 

degrees Fahrenheit. See Rodriguez, 630 F.3d at 380. The district court did not 

err by imposing the § 2L1.1(b)(6) enhancement based on the danger posed to 

the alien in the event of an accident and the extreme temperatures to which 

she was exposed. See Maldonado-Ochoa, 844 F.3d at 536-37; ZunigaAmezquita, 468 F.3d at 889.

AFFIRMED.

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