# United States Court **of Appeals**  **f or 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 contend s that the district court committed reversible plain error by applying an enhancement for intentionally or recklessly creating a substantial risk of

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 25, 2022 Lyle W. C ayce Clerk Case: 21-50515 Document: 00516218132 Page: 1 Date Filed: 02/25/2022No. 21

- 50515

2 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 capaci ty, 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.” Unite d States v. Zuniga

- Amezquita , 468 F.3d 886, 890 (5th Cir. 2006). T he 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 88 9 ; 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) enhanceme nt

. Rodriguez , 630 F.3d at 382

. Accordingly, the district court erred by applying § 2L1.1(b)(6) to calculat e 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 r ecord 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 Case: 21-50515 Document: 00516218132 Page: 2 Date Filed: 02/25/2022No. 21

- 50515

3 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 exer cise 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. Case: 21-50515 Document: 00516218132 Page: 3 Date Filed: 02/25/2022