IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40128

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VANESSA AGUAYO,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 5:16-CR-965-2

Before STEWART, Chief Judge, and PRADO and HIGGINSON, Circuit 

Judges.

PER CURIAM:*

Vanessa Aguayo appeals the 37-month sentence that was imposed 

following entry of her guilty plea to transporting illegal aliens. She challenges 

the U.S.S.G. § 2L1.1(b)(6) enhancement for intentionally or recklessly creating

a substantial risk of death or serious bodily injury; the U.S.S.G. § 3B1.4 

 

* 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

November 2, 2017

Lyle W. Cayce

Clerk

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enhancement for using minors to assist in avoiding detection of the offense; 

and the substantive reasonableness of her sentence.

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

the district court’s 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 

record reflects that Aguayo and her sister agreed to smuggle undocumented 

aliens from Mexico into the U.S. They caravanned together with the 

undocumented aliens in separate vehicles. At a border checkpoint, two aliens 

were discovered in the cargo area of a sports utility vehicle (SUV); the aliens 

were covered with blankets, heavy luggage, and a stroller, among other items. 

As a preliminary matter, we conclude that the district court did not err in 

finding that Aguayo was accountable for the placement of the aliens in the 

SUV. See U.S.S.G. § 1B1.3(a)(1)(B). Furthermore, the district court did not 

err in finding that placing the aliens in the cargo area of the SUV covered in 

heavy items created a substantial risk of injury to the aliens. See United States 

v. Mata, 624 F.3d 170, 172, 174-75 (5th Cir. 2010).

A § 3B1.4 enhancement applies when a defendant decides “‘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 Mata, 624 F.3d at 175). “To trigger 

the enhancement, a defendant must take some affirmative action to involve the 

minor in the offense”; mere presence 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 . . . 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” involving the minor. Mata, 624 F.3d at 176.

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Evidence establishing more than mere presence supports the district 

court’s determination that Aguayo used minor children to avoid detection of 

the offense. See id. Aguayo knew she would be transporting aliens. Because 

Aguayo 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. For 

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

enhancement. See id.

Aguayo asserts that the 37-month sentence is unnecessarily harsh 

because she transported only one alien who was seated comfortably inside her 

vehicle; her offense was non-violent and resulted in no damage or injury to 

anyone, nor loss of property; and that the district court erroneously gave 

weight to the enhancements for substantial risk of death or injury and use of 

a minor. A district court must properly calculate the guidelines range and

make an individualized assessment based on the facts of the case in light of

the 18 U.S.C. § 3553(a) factors; the sentence should be sufficient, but not 

greater than necessary, to comply with the goals of § 3553(a). Gall v. United 

States, 552 U.S. 38, 49-50 (2007); § 3553(a). “A discretionary sentence imposed 

within a properly calculated guidelines range is presumptively reasonable.”

United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). The 

presumption of reasonableness “is rebutted only upon a showing that the 

sentence does not account for a factor that should receive significant weight, it 

gives significant weight to an irrelevant or improper factor, or it represents a 

clear error of judgment in balancing sentencing factors.” United States v. 

Cooks, 589 F.3d 173, 186 (5th Cir. 2009). 

The district court imposed a sentence within the guidelines range that is 

entitled to a presumption of reasonableness. See Campos-Maldonado, 531 

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F.3d at 338. In sentencing Aguayo, the district court adopted the findings and 

calculations in the presentence report, considered the mitigating 

circumstances articulated by counsel, noted the seriousness of the offense and 

Aguayo’s extensive criminal record, expressed concern about involving minors 

in the offense, and considered the § 3553(a) factors. We find no error in the 

district court’s sentence, see United States v. Rodriguez, 523 F.3d 519, 522, 525-

26 & n.1 (5th Cir. 2008), and hold that Aguayo has failed to rebut the 

presumption of reasonableness. See Cooks, 589 F.3d at 186.

Accordingly, the judgment of the district court is AFFIRMED.

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