#### UNITED STATES of America, Plaintiff-Appellee, v. Javier LUNA-MORENO, Defendant-Appellant.

No. 00-50416.

D.C. No. CR-00-00800-WBE.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2001.

Decided June 5, 2001.

Before HUG, DUHÉ,* and TALLMAN, Circuit Judges.

*

 Honorable John M. Duhé, Jr., Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.

MEMORANDUM **

Appellant Javier Luna-Moreno appeals his sentence for transporting aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

*6391. The district court did not abuse its discretion, *see United States v. Hernandez-Guardado,*228 F.3d 1017, 1027 (9th Cir.2000), in applying U.S.S.G. § 2L1.1(b)(5) to Luna-Moreno, thus increasing his offense level to 18 for “recklessly creating a substantial risk of death or serious bodily injury to another.” Application note 6 to § 2L1.1(b)(5) provides:

> Reckless conduct to which the adjustment from subsection (b)(5) applies includes a wide variety of conduct *(e.g.,*transporting persons in the trunk or engine compartment of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, or harboring persons in a crowded, dangerous, or inhumane condition).

U.S.S.G. § 2L1.1(b)(5) cmt. n. 6 (2000). Transporting ten people on the highway in the bed of a pickup truck protected by only a camper shell is more dangerous than carrying more people in a van than it was designed to hold, which this court has already held permits the § 2L1.1(b)(5) increase. *See Hernandez-Guardado,*228 F.3d at 1027-28. Not only are there no seatbelts in the bed of a pickup truck, there are not even any seats. And a camper shell provides less protection than does the passenger compartment of a vehicle.

The only other published opinion from this court addressing § 2L1.1(b)(5) is *United States v. Dixon,*201 F.3d 1223, 1233 (9th Cir.2000), which reversed the (b)(5) increase for carrying two people in the hatchback of a car; however, transporting ten people in the bed of a pickup truck is more dangerous.

2. The district court did not err by not submitting to the jury the question whether Luna-Moreno created the risk discussed above. “Other than the fact of prior conviction, any fact that increases the penalty for a crime *beyond the statutory maximum*must be submitted to a jury, and proved beyond a reasonable doubt.” *Apprendi v. New Jersey,*530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (emphasis added); *Hernandez-Guardado,*228 F.3d at 1026. Luna-Moreno’s argument that *Apprendi*is implicated by exposure to a greater Guidelines sentencing range is foreclosed by this court’s precedent. *See Hernandez-Guardado,*228 F.3d at 1027. Because the § 2L1.1(b)(5) offense-level increase did not expose Luna-Moreno to a sentence greater than the statutory maximum-5 years under 8 U.S.C. § 1324(a)(1)(B)(ii)-Appren*di*does not require the jury to decide the question.

AFFIRMED.

**

 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.