* 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should not be published and is not precedent except under the limited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. 08-40074

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MAURICIO CENTENO ROMERO

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:07-CR-473-ALL

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Mauricio Centeno Romero (Romero) appeals his sentence for transporting

an illegal alien within the United States by means of a motor vehicle in violation

of 8 U.S.C. § 1324(a)(1)(A)(ii). Romero contends that the district court reversibly

erred when it enhanced his offense level under U.S.S.G. § 2L1.1(b)(6) because

there was no evidence that he intentionally or recklessly created a substantial

risk of death or serious bodily injury to the aliens. He concedes that the aliens

were transported under conditions which created a substantial risk of death or

United States Court of Appeals

Fifth Circuit

F I L E D

September 11, 2008

Charles R. Fulbruge III

Clerk
No. 08-40074

2

serious bodily injury. He argues, however, that the Government failed to

establish that he acted with the requisite mens rea because there was no

evidence that he knew or should have known that the aliens were hidden in the

air dam of his tractor-trailer. This court reviews the district court’s application

of the Sentencing Guidelines de novo and its findings of fact for clear error.

United States v. Charon, 442 F.3d 881, 887 (5th Cir. 2006).

Even if Romero did not have actual knowledge thatthe aliens were hidden

in the air dam, he is accountable for “all reasonably foreseeable acts and

omissions of others in furtherance of [a] jointly undertaken criminal activity.”

U.S.S.G. § 1B1.3(a)(1)(B). The proper focus is whether the reckless conduct of

transporting aliens in the air dam of a tractor-trailer was reasonably foreseeable

in connection with the criminal activity in which Romero agreed to participate.

See United States v. De Jesus-Ojeda, 515 F.3d 434, 443 (5th Cir. 2008).

The record shows that on June 21, 2007, two months prior to the instant

offense, Romero’s employee, Ricardo Vega-Marquez, was detained at the same

Border Patrol checkpoint after agents found three aliens hidden in the air dam

of Romero’s tractor-trailer. Bukipin’s phone number was found in two of the

aliens’ pockets. Phone records for the day in question also showed several calls

between Romero and an unidentified individual, as well as several calls between

Bukipin, the unidentified individual, and another individual who Romero had

a picture of in his cellular phone. Further, the presentence report (PSR)

provides that Bukipin approached Romero on several occasions throughout the

years about transporting aliens. Although Romero had previously declined

Bukipin’s offers, these facts support an inference that Romero had prior

knowledge of Bukipin’s alien smuggling operation. Moreover, the PSR provides

that 38 phone calls were made between Romero and Bukipin from July 26, 2007,

to August 23, 2007, further demonstrating Romero’s more than minimal

involvement in the operation. Although the district court did not rely on

§ 1B1.3(a)(1)(B) or the prior incident when it overruled Romero’s objection, this
No. 08-40074

3

court “may affirm the district court’s judgment on any basis supported by the

record.” United States v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005). Therefore,

based on the foregoing, it was reasonably foreseeable that the aliens would be

hidden in the air dam of Romero’s tractor-trailer, and the district court did not

clearly err when it enhanced Romero’s offense level under § 2L1.1(b)(6). See De

Jesus-Ojeda, 515 F.3d at 443. Accordingly, the district court’s judgment is

AFFIRMED.