REVISED NOVEMBER 15, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41092

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARIA CECILIA MATA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges

PER CURIAM:

Maria Cecilia Mata appeals the forty-five-month sentence imposed

following her plea of guilty to a charge of transporting an undocumented alien

for financial gain in violation of 8 U.S.C. § 1324. Mata contends that the district

court committed error by enhancing her sentence pursuant to U.S.S.G.

§§ 2L1.1(b)(6) & 3B1.4. She also contends that the district court committed plain

error by delegating to the probation officer the authority to determine whether

Mata would be required to participate in mental-health treatment as a special

condition of her supervised release. We conclude that both contentions are

without merit and affirm Mata’s sentence. 

United States Court of Appeals

Fifth Circuit

F I L E D

October 14, 2010

Lyle W. Cayce

Clerk
No. 09-41092

1 See U.S. SENTENCING GUIDELINES MANUAL § 2L1.1(a)(3) (2009). 

2 See id. § 2L1.1(b)(6). 

2

I. 

At approximately 8:25 p.m. on May 27, 2009, Border Patrol agents stopped

a 2001 Ford Escape at the Interstate-35 checkpoint twenty-nine miles north of

Laredo, Texas. A Ford Escape seats five. Six people were in the car. Mata was

driving, her sixteen-year-old son was in the front seat, and seated in the back

were a friend of Mata’s who was over the age of eighteen, her friend’s minor

daughter, and Mata’s six-year-old daughter. In the cargo area behind the back

seat, underneath a pile of blankets, luggage, and a stroller, was a Mexican

National named Edgar Guerrero-Cruz. Border Patrol agents discovered

Guerrero-Cruz while inspecting the vehicle at the checkpoint. The agents

arrested Mata, who admitted to them that she was being paid to drive GuerreroCruz, who she knew was illegally present in the United States, from Laredo to

San Antonio. Mata was charged in a one-count indictment with transporting an

undocumented alien for financial gain by means of a motor vehicle under 8

U.S.C. § 1324. She pleaded guilty without a plea agreement.

At issue in this appeal are two sentence enhancements that the probation

officer applied after calculating Mata’s base offense level as twelve under the

United States Sentencing Guidelines.1 First, the probation officer enhanced

Mata’s offense level to eighteen on the ground that Mata’s “offense involved

intentionally or recklessly creating a substantial risk of death or serious bodily

injury to another person.”2 Second, Mata received a two-level enhancement

because the probation officer found that Mata “used or attempted to use a person

less than eighteen years of age to commit the offense or assist in avoiding
No. 09-41092

3 See id. § 3B1.4. 

4 United States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010).

5 United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (quoting United States

v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)). The district court must find that the government

has proven any fact necessary to support a sentence enhancement by a preponderance of the

evidence. See United States v. Conner, 537 F.3d 480, 491-92 (5th Cir. 2008) (citing U.S.

SENTENCING GUIDELINES MANUAL § 6A1.3 cmt.).

6 United States v. Castillo, 430 F.3d 230, 238 (5th Cir. 2005) (citation and internal

quotation marks omitted).

3

detection of, or apprehension for, the offense.”3 Mata also received a two-level

reduction for acceptance of responsibility, so her final offense level was eighteen.

Mata objected to both enhancements at her sentencing hearing. The district

court overruled her objections, adopted the presentence report, and sentenced

Mata to a forty-five-month term of confinement. 

The district court also placed Mata on a three-year term of supervised

release following her release from custody. One of the conditions of Mata’s

supervised release is that she is required to participate in a mental-health

program “as deemed necessary by the Probation Department.” Mata did not

object to this condition before the district court. On appeal, she contends that

it was unconstitutional for the district court to delegate to the Probation

Department the determination of whether she would have to participate in a

mental-health program.

II.

We review the district court’s interpretation and application of the

Sentencing Guidelines de novo.4 A district court’s “‘[f]actual findings regarding

sentencing factors are entitled to considerable deference and will be reversed

only if they are clearly erroneous.’”5 A factual finding is clearly erroneous if,

after reviewing the entire evidence, the reviewing court “is left with the definite

and firm conviction that a mistake has been committed.”6 A factual finding is
No. 09-41092

7 Williams, 610 F.3d at 292 (quoting United States v. Miller, 607 F.3d 144, 148 (5th Cir.

2010)).

8 United States v. Charon, 442 F.3d 881, 891 (5th Cir.) (quoting United States v. Harris,

434 F.3d 767, 773 (5th Cir. 2005)), cert. denied, 549 U.S. 915 (2006).

9 See United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005).

10 See id.

11 United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). 

12 See U.S. SENTENCING GUIDELINES MANUAL § 2L1.1 cmt. 5 (2009).

13 Zuniga-Amezquita, 468 F.3d at 889.

4

not clearly erroneous so long as it is “‘plausible in light of the record as a

whole.’”7 A court of appeals may not reverse a district court’s finding of fact

based only on its belief that, “‘had it been sitting as the trier of fact, it would

have weighed the evidence differently’” and reached a different conclusion.8

A. 

The district court did not err by applying the reckless-endangerment

enhancement under § 2L1.1(b)(6) ofthe Sentencing Guidelines. Whether Mata’s

conduct in transporting Guerrero-Cruz qualifies as “intentionally or recklessly

creating a substantial risk of death or serious bodily injury to another person”

as required by § 2L1.1(b)(6) is a question of law, so our review is de novo.9 But

we review only for clear error the underlying factual findings on which the

district court based its legal conclusion.10

The application of § 2L1.1(b)(6)“requires a fact-specific inquiry”11 because

the reckless-endangerment enhancement is intended to apply to “a wide variety

of conduct.”12 “[A] single, bright-line test is not necessarily appropriate for a

guideline that must be applied to [the] wide variety of factual settings” in which

defendants transport aliens for financial gain.13 Accordingly, we have

articulated a nonexclusive list of five factors to guide district courts in their

application of § 2L1.1(b)(6):“the availability of oxygen, exposure to temperature
No. 09-41092

14 Id.

15 See, e.g., United States v. Rodriguez-Mesa, 443 F.3d 397, 403 (5th Cir. 2006).

16 See, e.g., United States v. Garza, 587 F.3d 304, 309 (5th Cir. 2009).

17 Zuniga-Amezquita, 468 F.3d at 890.

18 Id. at 890. 

19 See, e.g., Solis-Garcia, 420 F.3d at 516 (holding that a defendant who transported

four aliens in the cargo area of a minivan did not warrant the § 2L1.1(b)(6) enhancement

because the dangers “associated with riding in the cargo area . . . are generally the same

dangers that arise from an individual not wearing a seatbelt in a moving vehicle”); see also

United States v. Dixon, 201 F.3d 1223, 1233 (9th Cir. 2000) (reversing the district court’s

application ofthe reckless-endangerment enhancement where the defendant had transported

aliens in the trunk area of his hatchback car on the ground that “a person hiding in a

hatchback area easily could extricate himself by pushing up the lightweight, flimsy hatchback

cover”).

5

extremes, the aliens’ ability to communicate with the driver of the vehicle, their

ability to exitthe vehicle quickly, and the danger to them if an accident occurs.”14

Only the fourth and fifth of those factors are pertinent to this case. 

Out of this fact-bound area of the law a few guiding principles have

emerged. As to the fourth factor, we have affirmed the enhancement in

situations in which it would have been difficult for the alien to extricate herself

from the vehicle in the event of an emergency because the alien was jammed into

a compartment15 or wedged into a tight space.16 We have also upheld the

imposition of the enhancement where the aliens, who were being transported in

a van, were completely surrounded by boxes “practically piled up to the top ofthe

van” that were too big for the aliens to easily move.17 As to the fifth factor, the

enhancement is proper only if the aliens would be in greater danger if an

accident occurred than “an ordinary passenger not wearing a seatbelt in a

moving vehicle.”18 As a result, the mere fact that an alien is transported in a

portion of the car that is not designed to hold passengers is not, without more,

sufficient to support the enhancement.19
No. 09-41092

20 Cf. United States v. McKinley, 272 F. App’x 412, 413 (5th Cir. 2008) (per curiam)

(unpublished)(vacating the defendant’s sentence after concluding thatthe defendant’s decision

to hide four adult, male aliens under a king-size mattress did not create a danger of

suffocation, reasoning that “[a] 15-pound mattress does not create a substantial risk of death

or serious bodily injury to four adult men” (citations, internal quotation marks, and brackets

omitted)). Although this unpublished decision does not bind us, see 5TH CIR. R. 47.5.4, we find

its reasoning persuasive. 

6

In this case, the district court made two findings in support of its decision

to apply the reckless-endangerment enhancement. First, the court found that

the stroller under which the Guerrero-Cruz was hiding would impede his ability

to exitthe vehicle quickly because it was notlightweight,“clunky,” and “notthat

easy to move out of the way.” Second, the court found that it was “likely” and

“highly foreseeable” that, in the event of an accident, the stroller “would cause

more damage” and “the injuries [to Guerrero-Cruz ] would be much more severe

than if he were just in the back covered with blankets.” Had we been sitting as

the trier of fact, we might have concluded that the stroller would not have

significantly impeded the alien’s ability to exit the vehicle.20 But the districtcourt’s contrary finding—assisted as it was by its viewing of photos of the

stroller and other items covering Guerrero-Cruz, photos which have not been

made part of the record on appeal—is certainly plausible in light of the record

as a whole. So too is its finding that the presence of the stroller in the car

created a substantial risk that Guerrero-Cruz would suffer serious injury in the

event of an accident. We thus conclude that these findings of fact were not

clearly erroneous. As a consequence, the district court did not err by enhancing

Mata’s sentence for reckless endangerment under § 2L1.1(b)(6).

B.

Nor did the district court err by applying the use-of-a-minor enhancement

under § 3B1.4 of the Guidelines. A defendant who “used or attempted to use a

person less than eighteen years of age to committhe offense or assist in avoiding

detection of, or apprehension for, the offense” is subject to a two-level sentence

enhancement under § 3B1.4. A defendant uses or attempts to use a minor
No. 09-41092

21 See U.S. SENTENCING GUIDELINES MANUAL § 3B1.4 cmt. 1 (2009).

22 See United States v. Molina, 469 F.3d 408, 413 (5th Cir. 2006)

23 See id. at 415 (noting that this court had previously upheld a § 3B1.4 enhancement

where “the defendant brought minor children on a drug run to avoid detection by law

enforcement”) (citing United States v. Gutierrez, 251 F.3d 156, 2001 WL 300644, at *1 (5th Cir.

Feb 28, 2001) (per curiam) (unpublished table decision), cert. denied, 534 U.S. 823 (2001)).

24 228 F. App’x 462, 463 (5th Cir) (per curiam) (“In light of the undisputed evidence that

a co-defendant was to smuggle a quantity of cocaine hidden in an infant carrier seat and that

the co-defendant's infant child was brought to the bus station, we conclude that the district

court did not clearly err in finding that [the § 3B1.4] enhancement was warranted.”), cert.

denied, 552 U.S. 921 (2007).

25 112 F. App’x 374, 374 (5th Cir. 2004) (per curiam) (“Farias admitted that he was

instructed to take his children on drug-smuggling trips to avoid detection by law enforcement,

and his children accompanied on two such trips. He failed to provide any other plausible

explanation for taking his children with him on those trips. The district court did not clearly

err [in applying § 3B1.4].”). 

26 251 F.3d 156, 2001 WL 300644, at *1 (“The district court could infer that Gutierrez

had orchestrated the presence of his children in an attempt to give the appearance of a family

traveling together and thereby avoid detection by law enforcement. Such an inclusion of

children is a ‘use’ of minors for purposes of § 3B1.4.”).

7

within the meaning of § 3B1.4 if the defendant directs, commands, encourages,

intimidates, counsels, trains, procures, recruits, or solicits the minor.21 At issue

in this appeal is the portion of § 3B1.4 that authorizes the enhancement if the

defendant uses a minor to “assist in avoiding detection of . . . the offense.” The

determination of whether Mata used or attempted to use a minor to assist in

avoiding detection within the meaning of § 3B1.4 is a conclusion of law that we

review de novo, while any findings of fact made in support of that determination

we review for clear error.22

We have suggested, but never held in a published opinion, that a

defendant who makes a decision to bring a minor along during the commission

of a previously planned crime as a diversionary tactic or in an effort to reduce

suspicion is subject to having her sentence enhanced under § 3B1.4.23 We so

hold today, consistent with our previous unpublished decisions in United States

v. Zertuche,

24 United States v. Farias,25 United States v. Gutierrez,26 and United
No. 09-41092

27 216 F.3d 1079, 2000 WL 729068, at *1 (5th Cir. May 8, 2000) (unpublished table

decision) (“[T]he guideline is broad enough to encompass circumstances where adult criminals

benefit from a minor's passive participation in the criminal scheme. . . . [W]e conclude that the

district court was entitled to infer that Ibarra and Torres transported the small child in the

vehicle as part of a strategy calculated to reduce the chance thatlaw enforcement agents would

delay their trip to make a careful inspection of the vehicle for drugs. We conclude that this use

of a child as a diversionary tactic to transport drugs undetected across the border is a ‘use’ of

a minor under § 3B1.4.”), cert. denied, 531 U.S. 939 (2000).

28 Cf. United States v. Alarcon, 261 F.3d 416, 422 (5th Cir. 2001), cert. denied, 534 U.S.

1099 (2002). Alarcon reviewed the sufficiency ofthe evidence in support of a conviction for the

use of a minor in avoiding detection in violation of 21 U.S.C. § 861(a)(2), id., but we have

previously found Alarcon to be “instructive as to what conduct constitutes use of a minor”

under § 3B1.4, see Molina, 469 F.3d at 415 n.6.

29 Molina, 469 F.3d at 415 (citations and internal quotation marks omitted). 

30 Accord United States v. Preciado, 506 F.3d 808, 810 (9th Cir. 2007) (per curiam), cert.

denied, 128 S. Ct. 2980 (2008).

31 See, e.g., United States v. Caldwell, 448 F.3d 287, 292 (5th Cir. 2006) (explaining that

“direct evidence [that] conclusively establishes” the factual basis for a sentence enhancement

is not required because “the sentencing court is permitted to make common-sense inferences

8

States v. Ibarra-Sandoval.

27 This holding takes heed of the general rule that

the defendant must take some affirmative action to involve the minor in the

offense28 and that “[a]bsent other evidence, the mere presence of a minor” at the

scene of a crime “is insufficient to support the application of § 3B1.4.”29 When

a defendant’s crime is previously planned—when, for example, she leaves the

house knowing she is on her way to smuggle drugs, or intending to pick up a

person who is unlawfully present in the United States—the act of bringing the

child along instead of leaving the child behind is an affirmative act that involves

the minor in the offense. Intentionally using a minor as a decoy is “use” of a

minor under § 3B1.4.30

This is not to say that every defendant who brings a minor child along

while smuggling drugs or aliens is subject to having her sentence enhanced

under § 3B1.4. The district court should consider additional circumstantial

evidence to determine whether the defendant used the minor to avoid

detection.31 For example, in Molina, we held that the district court erred by
No. 09-41092

from the circumstantial evidence”). 

32 Molina, 469 F.3d at 415. 

33 Preciado, 506 F.3d at 811 (describing United States v. Jimenez, 300 F.3d 1166, 1168

(9th Cir. 2002)).

34 See, e.g., United States v. Castro-Hernandez, 258 F.3d 1057, 1060-61 (9th Cir. 2001)

(affirming application of the § 3B1.4 enhancement where at least four pieces of circumstantial

evidence supported the conclusion that the defendant had used his minor son for purposes of

avoiding detection ofthe fact that he was smuggling drugs), cert. denied, 534 U.S. 1167 (2002).

9

imposing the § 3B1.4 enhancement where there was no evidence that the

defendant in a drug-conspiracy case “believed that his seventeen-year-old

girlfriend’s presence in the vehicle during the drug run would assist in avoiding

detection” and there was a plausible alternate explanation for the girlfriend’s

presence in the vehicle.32 The § 3B1.4 enhancement also was unwarranted

where the defendant’s minor son was in the car with her when she was arrested

while attempting to smuggle drugs across the border but “the defendant (who

was living in the United States) planned the crime on the spur of the moment

while she was already in Mexico with her son for a family party.”33 But where

additional circumstantial evidence tends to confirm that the defendant brought

the minor along as a decoy and to avoid detection, the § 3B1.4 enhancement is

warranted.34

In this case, the district court found that Mata had chosen to bring her

friend and the three minor children with her to give the appearance that the

group was traveling as a family unit and to reduce the likelihood of coming

under suspicion for being engaged in criminal conduct. More specifically, the

district courtfound that Mata chose to bring her children along because it would

help make the presence of the stroller in the trunk seem more plausible. The

court also found that Mata could have avoided bringing her children with her by

leaving them under the care of her friend, who, like Mata, lived in San Antonio.

A preponderance of the evidence supported each of these findings. Taken

together, these findings provide ample supportfor the district court’s conclusion
No. 09-41092

35 603 F.3d 279, 280-82 (5th Cir.), cert. filed, No. 10-5298 (July 6, 2010).

10

that Mata attempted to use the presence of the three minors in her car to assist

in avoiding detection of her offense. The district court did not err by enhancing

Mata’s sentence under § 3B1.4.

III. 

Finally, Mata contends that the district court committed plain error by

impermissibly delegating to a probation officer its judicial authority to determine

whether Mata should be required to participate in a mental-health program as

a condition of her supervised release. After Mata filed her brief, a panel of this

Court held in United States v. Bishop that a district judge’s delegation of its

authority in this manner is not, in light of this Court’s precedent, plainly

erroneous.35 Bishop forecloses Mata’s position. 

IV. 

For the reasons discussed above, the judgment of the district court is

AFFIRMED.