United States Court of Appeals

for the Fifth Circuit

No. 21-50515

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Ricardo Hernandez, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:20-CR-505

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:*

Ricardo Hernandez appeals his 27-month, within-guidelines range 

sentence for transporting illegal aliens for financial gain. He contends that 

the district court committed reversible plain error by applying an 

enhancement for intentionally or recklessly creating a substantial risk of 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 25, 2022

Lyle W. Cayce

Clerk

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death or serious bodily injury to another person. See U.S.S.G. § 2L1.1(b)(6); 

United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011). We agree.

The operative facts—Hernandez’s carrying three passengers over his 

sport utility vehicle’s rated capacity, some of whom were stacked

unrestrained in the nonpassenger area of the vehicle—do not, without more, 

suffice to show that the risk of harm to the aliens was “greater than that of an 

ordinary passenger not wearing a seatbelt in a moving vehicle.” United States 

v. Zuniga-Amezquita, 468 F.3d 886, 890 (5th Cir. 2006). The record does not 

reflect any aggravating factors, such as evidence that the aliens would have 

been unable to exit the vehicle quickly or were in greater danger in the event 

of an accident. See id. at 889; cf. United States v. Rodriguez, 630 F.3d 377, 379-

83 (5th Cir. 2011). In the absence of aggravating factors, merely carrying 

unrestrained passengers in the cargo area of a sport utility vehicle does not 

justify a § 2L1.1(b)(6) enhancement. Rodriguez, 630 F.3d at 382.

Accordingly, the district court erred by applying § 2L1.1(b)(6) to

calculate Hernandez’s sentence. And in light of our published decisions in 

Rodriguez, Zuniga-Amezquita, and United States v. Solis-Garcia, 420 F.3d 511, 

512-16 (5th Cir. 2005), we conclude that the error was clear or obvious. See 

Puckett v. United States, 556 U.S. 129, 135 (2009). The error also affected 

Hernandez’s substantial rights. See id. It exposed him to a higher guidelines 

range, and the record is silent as to what the district court might have done 

had it considered the correct range, such that there is a reasonable probability 

of a different sentencing outcome absent the error. See Molina-Martinez v. 

United States, 578 U.S. 189, 198, 201 (2016).

Finally, “[i]n the ordinary case . . . the failure to correct a plain 

Guidelines error that affects a defendant’s substantial rights will seriously 

affect the fairness, integrity, and public reputation of judicial proceedings.” 

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018). Here, the 

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sentencing error was “clear and reasonably likely to have resulted in a longer 

prison sentence than necessary,” and the record reveals no “countervailing 

factors that otherwise further the fairness, integrity, or public reputation of 

judicial proceedings.” United States v. Urbina-Fuentes, 900 F.3d 687, 698 

(5th Cir. 2018) (internal quotation marks and citations omitted). Because 

there is nothing to suggest this is not the ordinary case, we will exercise our 

discretion to correct the error. See Puckett, 556 U.S. at 135.

For the foregoing reasons, we VACATE and REMAND the case to 

the district court for resentencing. 

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