* Circuit Judge of the Third Circuit, sitting by designation.

** 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this opinion should not be published and is not precedent except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

FOR THE FIFTH CIRCUIT

No. 01-40512

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GUADALUPE GOMEZ-CORTEZ,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(No. 7:00-CR-578)

March 22, 2002

Before ALDISERT,* DAVIS and PARKER, Circuit Judges.

PER CURIAM:**

Appellant-Defendant Guadalupe Gomez-Cortez (Gomez) was

convicted on her plea of having smuggled illegal aliens into the

United States in violation 8 U.S.C. § 1324(a). She now appeals the

district court’s adding two levels to her base offense for

“recklessly creating a substantial risk of death or serious bodily
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injury to another person.” She also appeals the court’s imposing

eight more levels for a death that allegedly occurred during the

course of the offense. We reverse in part and affirm in part.

BACKGROUND

This matter arises from Gomez’s efforts to smuggle Issac

Rivera-Aguilar (Rivera) into the United States. Rivera was a 16-

year-old from El Salvador who with the financial assistance of his

mother paid Gomez and others to transport him to California through

Mexico and Texas. Gomez had been regularly secreting illegal

aliens into the United States. Two that she often worked with were

Geraldine Peraza and her son Juan Ruiz, whose house served as a way

station in Hidalgo, Texas for illegal aliens in transit. Sometime

in October 2000, Rivera arrived at Ruiz’s house. After several

days there, Gomez came to take him on to Brownsville. When she

arrived, Peraza warned her that Rivera “looked ill” and that she

should leave him behind until he was better. Gomez took Rivera to

Brownsville anyway. Four days later, Gomez turned him and three

others over to a man known only as Carlos. Carlos was supposed to

take the four on to Houston. 

A few days after picking up Rivera, Gomez, along with her

husband, Sergio Sierra, returned to Ruiz’s house and announced that

Rivera had died shortly after arriving in Houston. Peraza and Ruiz

watched as Sierra took a scrap of paper from Gomez’s purse and

apparently dialed the number for the house in Houston where
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Rivera’s body supposedly lay. Sierra instructed the person on the

other end of the line to “take the boy’s body out of the house

because the smell would get worse.” Peraza later called Rivera’s

mother, Josefa Aguilar, and told her that her son had died en route

to California. Aguilar’s sister then called the Border Patrol’s

McAllen, Texas office, which set in motion a chain of events

eventually leading to Gomez’s arrest. Rivera’s body has not been

recovered.

On January 3, 2001, Gomez pleaded guilty to a single count of

violating 8 U.S.C. § 1324(a), “bringing in and harboring certain

aliens.” In its presentence report, the probation office

recommended against Gomez receiving an upward adjustment for

Rivera’s death or for having committed an offense that involved a

risk of serious bodily injury or death. The P.S.R. stated: “[I]t

is unknown whether the participants of the smuggling venture caused

the death, or whether their negligence and/or recklessness

contributed to the death.” The district court declined to follow

the probation office’s recommendation. It instead found:

[A]t the time [Rivera] was transported from the Peraza

residence to Brownsville and then on to Houston, he was

ill. And that this Defendant was aware of that. That no

medical attention was secured for him. And that

therefore, because of that, that was a reckless creation

of a substantial risk of death or serious bodily injury
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because of transporting an individual through that kind

of temperature with an illness.

In accordance with § 2L1.1(b)(5) of the federal sentencing

guidelines, the court added two levels to Gomez’s base offense for

“intentionally or recklessly creating a substantial risk of death

or serious bodily injury to another person.” Then, in accordance

with subsection (b)(6) of the same guideline, the court added eight

more levels for a death having occurred during the offense. The

adjustments increased Gomez’s offense level from 12 to 22. After

making two other adjustments, the court arrived at a total offense

level of 25. The court sentenced her to 71 months’ imprisonment,

the maximum sentence for someone with Gomez’s offense level.

DISCUSSION

Though we review the district court’s application of the

sentencing guidelines de novo, we are required to give “‘due

deference to the district court’s application of the guidelines to

the facts.’” See United States v. Paul, 274 F.3d 155, 162 (5th

Cir. 2001)(quoting 18 U.S.C. § 3742(e)). The amount of deference

we must give depends on how closely the application turns on the

facts, with greatest deference being required when the legal

outcome relies “heavily upon an understanding of the significance

of case-specific details.” See Buford v. United States, 532 U.S.

59, 65 (2001). Always accorded great deference, however, are the

district court’s findings of fact, which we review for clear error

only. See Paul, 274 F.3d at 161. In making its findings, the
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district court may rely on evidence that would not otherwise be

admissible at trial so long as “the information has sufficient

indicia of reliability to support its probable accuracy.” See

UNITED STATES SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 6A1.3(a)(2001).

I.

Section 2L1.1 is the applicable sentencing guideline in this

case. Subsection (b)(5) of that guideline provides: “If the

offense involved intentionally or recklessly creating a substantial

risk of death or serious bodily injury to another person, increase

by 2 levels . . . .” U.S.S.G. § 2L1.1(b)(5). We have not before

considered what sort of conduct constitutes creating the kind of

risk described in (b)(5). The district court found that Gomez did

not act intentionally, but instead that she acted recklessly.

Elsewhere in the guidelines manual, “reckless” is defined as:

a situation in which the defendant was aware of the risk

created by his conduct and the risk was of such a nature

and degree that to disregard that risk constituted a

gross deviation from the standard of care that a

reasonable person would exercise in such a situation.

U.S.S.G. § 2A1.4 cmt. n.1. Subsection (b)(5) also requires that

the defendant acted to put someone at risk of “serious bodily

injury,” which in the guidelines is defined as “injury involving

extreme physical pain or the protracted impairment of a function of

a bodily member, organ, or mental faculty; or requiring medical

intervention such as surgery, hospitalization, or physical
1 See, e.g., United States v. Yeh, 278 F.3d 9, 12 (D.C. Cir.

2002)(aliens left in an overstuffed freighter without food or

water); United States v. Rodriguez-Cruz, 255 F.3d 1054, 1059 (9th

Cir. 2001)(aliens were made to trek through severe weather and

across difficult terrain); United States v. Angwin, 271 F.3d 786,

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rehabilitation.” U.S.S.G. § 1B1.1 cmt. n. 1(i). Nonserious bodily

injury, by way of comparison, “means any significant injury; e.g.,

an injury that is painful and obvious, or is a type for which

medical attention ordinarily would be sought.” Id. § 1B1.1 cmt. n.

1(b). Finally, the risk of serious bodily injury must be a

substantial one. The term “substantial risk” is not defined by the

guidelines, but the leading U.S. dictionary defines the word “risk”

as “the possibility of loss, injury, disadvantage, or destruction,”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1961 (1981), and references

the words “material” and “real” as being synonymous with

“substantial,” id. at 2280. Thus, stated differently, subsection

(b)(5) applies to conduct in which the defendant knowingly

subjected another to a material and real possibility of severe pain

or injury requiring prolonged medical intervention.

Against the foregoing interpretation, we conclude that the

record does not support the application of subsection (b)(5) in

this case. There is no basis for concluding that Rivera was put in

peril while being transported from Hidalgo to Brownsville or to

anywhere else for that matter. Exposure to peril in transit is by

far the most common situation in which other circuits have upheld

the application of (b)(5).1 Here, Gomez drove Rivera from Hidalgo
809 (9th Cir. 2001)(16 aliens in a motorhome only rated for six

persons); United States v. Kang, 225 F.3d 260, 262 (2d Cir.

2000)(aliens lodged between drive shaft and engine and exposed to

pavement).

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to Brownsville, with Rivera riding in the passenger seat the whole

way. Assuming for the moment that the area was experiencing

unusually cold or wet weather, a supposition that is neither

supported by the record nor by our own commonsense understanding of

what weather conditions are like in early October in that part of

the world, we cannot see how Gomez’s taking Rivera on to

Brownsville as she did subjected the boy to a real risk of serious

bodily injury. And since it is unknown by what mode Carlos took

Rivera to Houston, we cannot say that the boy was put at risk on

that leg of his trip either. Nor are we persuaded that the state

of Rivera’s health was such that he could not travel at all.

Peraza, who had the opportunity to observe Rivera for serval days,

only went so far as to tell Gomez that the boy “looked ill.”

Having Rivera travel anyway hardly proves Gomez ignored a

substantial possibility that the boy would be made to endure severe

pain or an injury requiring lasting medical intervention.

Moreover, Peraza’s opinion about Rivera’s condition, and that the

boy should be left behind, might have been influenced by her own

self-interest, for she was being paid for his lodging. Seeing only

scant evidence of the conditions Rivera was made to endure en route

to California, and without more particular information about

Rivera’s supposed illness, we cannot say that Gomez committed
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Rivera to the sort of risk subsection (b)(5) was designed to

protect against. We therefore conclude that district court erred

in its application of (b)(5).

II.

We affirm the district court’s application of § 2L1.1(b)(6),

however. That provision of the sentencing guidelines requires an

eight-level increase if “any person” died during the course of a §

1324 offense. See U.S.S.G. § 2L1.1(b)(6)(4). Gomez argues that

there was insufficient evidence to conclude that Rivera died while

being smuggled, the boy’s body never having been recovered. We

disagree. A preponderance of the evidence is all that is required

to show the existence of a disputed sentencing factor. See Paul,

274 F.3d at 164. Gomez claims that her knowledge of Rivera’s

whereabouts is limited to a call she received from Carlos, who

claimed the boy had died in Houston or on the way there.

Nevertheless, we note that Gomez and Sierra deemed this information

sufficiently reliable to convey it to their fellow smugglers upon

returning to Hidalgo. Indeed, having supposedly received only

Carlos’s report, Sierra promptly made arrangements to have Rivera’s

body moved from the house in Houston.

CONCLUSION

We REVERSE the district court’s adding two levels in

accordance with U.S.S.G. § 2L1.1(b)(5), but we AFFIRM its
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application of subsection (b)(6) of the same guideline. Consistent

with the foregoing, we REMAND for purposes of resentencing.