IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40026

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

ANA LILIA MUNIZ, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 7:15-CR-1043-1 

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges. 

PER CURIAM:*

Ana Lilia Muniz appeals the 18-month sentence she received following 

her guilty-plea conviction for transporting illegal aliens, in violation of 8 U.S.C. 

§ 1324. She argues that (i) the district court erred by enhancing her sentence 

pursuant to U.S.S.G. § 2L1.1(b)(6) based on a finding that she intentionally or 

recklessly created a substantial risk of death or serious bodily injury to the 

aliens by transporting them in the trunk of the vehicle she was driving; (ii) the 

 

* 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

Fifth Circuit

FILED

January 3, 2017

Lyle W. Cayce

Clerk

 Case: 16-40026 Document: 00513819894 Page: 1 Date Filed: 01/03/2017
No. 16-40026

2 

district court erred when it—in overruling her objection to the § 2L1.1(b)(6) 

enhancement—noted that driving slowly would not necessarily prevent an 

accident and could cause an accident; and (iii) the district court erred in 

applying a two-level enhancement pursuant to U.S.S.G. § 3B1.4 based on a 

finding that she used her two minor children to assist in avoiding detection of 

the offense. 

The District Court’s Application of the § 2L1.1(b)(6) Enhancement 

We review a district court’s interpretation of the Guidelines de novo and 

review the district court’s fact findings relative to the § 2L1.1(b)(6) 

enhancement for clear error. United States v. Rodriguez, 630 F.3d 377, 380 

(5th Cir. 2011). The transportation of aliens in the trunk of a vehicle is 

specifically listed in the comments to § 2L1.1(b)(6) as the type of conduct 

contemplated by the Sentencing Commission in drafting the guideline 

provision. § 2L1.1, comment. (n.3); see United States v. Mateo-Garza, 541 F.3d 

290, 294 (5th Cir. 2008) (stating that transporting persons in a trunk or engine 

compartment of a vehicle per se creates a substantial risk of serious injury or 

death because those areas are not designed to hold human passengers). 

Accordingly, the district court did not err by enhancing Muniz’s sentence based 

on its finding that she transported aliens in the trunk of the vehicle she was 

driving. 

The District Court’s Comment Regarding Slow Driving 

In the district court, Muniz objected to the application of the § 2L1.1(b)(6) 

enhancement on the grounds that, inter alia, she was driving slow, which 

created a safe condition. In overruling her objection to the § 2L1.1(b)(6) 

enhancement, the district court noted that driving slow on a highway does not 

necessarily prevent an accident, and, in fact, can cause an accident. Muniz did 

not object to the district court’s comment at the time, but argues on appeal that 

 Case: 16-40026 Document: 00513819894 Page: 2 Date Filed: 01/03/2017
No. 16-40026

3 

nothing in her presentence report discusses whether slow driving can cause an 

accident, and, accordingly, she did not have sufficient notice and an 

opportunity to address the issue at sentencing. Because Muniz failed to raise 

an objection below, we review the issue for plain error. See United States v. 

Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). To show plain error, 

Muniz must show a forfeited error that is clear or obvious and that affects her 

substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).

Because the comments to § 2L1.1(b)(6) specifically provide that 

transporting unlawful aliens in the trunk of a vehicle creates a risk of injury 

for the purposes of § 2L1.1(b)(6), Muniz cannot show how any purported error 

in the district court’s reasons for denying her objection to the § 2L1.1(b)(6) 

enhancement affected her substantial rights. See Puckett, 556 U.S. at 135; see 

also Mateo-Garza, 541 F.3d at 294; § 2L1.1, comment. (n.3). 

The District Court’s Application of the § 3B1.4 Enhancement 

A § 3B1.4 enhancement applies “when a defendant ‘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 . . . .’” United States v.

Powell, 732 F.3d 361, 380 (5th Cir. 2013) (quoting United States v. Mata, 624 

F.3d 170, 175 (5th Cir. 2010)). “To trigger the enhancement, a defendant must 

take some affirmative action to involve the minor in the offense because the 

mere presence of a minor at the scene of the crime is insufficient.” Powell, 732 

F.3d at 380 (internal quotation marks and citation omitted). “When a 

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

house knowing she is on her way to smuggle drugs . . . the act of bringing the 

child along instead of leaving the child behind is an affirmative act” involving 

the minor. Mata, 624 F.3d at 176.

 Case: 16-40026 Document: 00513819894 Page: 3 Date Filed: 01/03/2017
No. 16-40026

4 

In this case, circumstantial evidence beyond mere presence supports a 

finding that Muniz used her two minor children to avoid detection of the 

offense. See id. This was not a spur-of-the-moment crime. See id. at 177 

& n.33. Rather, Muniz knew she would be transporting aliens before she 

committed the crime. To the extent that it was necessary for Muniz to ensure 

adult supervision of her minor children—which is far from clear given their 

ages of 13 and nine and the fact that no evidence was presented establishing 

as much—she chose not to do so. Because Muniz left her house knowing that 

she was going to commit the subject offense, “the act of bringing the [children] 

along instead of leaving [them] behind is an affirmative act that involves the 

minor in the offense.” Id. at 176. Furthermore, Muniz’s presentence report 

states that, after her arrest, Muniz’s “minor daughters were released to their 

maternal aunt and uncle,” suggesting that Muniz did have options for child 

care. Given the foregoing, the district court did not err in applying the § 3B1.4 

enhancement. 

Accordingly, the judgment of the district court is AFFIRMED. 

 Case: 16-40026 Document: 00513819894 Page: 4 Date Filed: 01/03/2017