UNITED STATES of America, Plaintiff-Appellee, v. Rodrick SMITH, Defendant-Appellant, 236 F. App'x 41

PER CURIAM: Having pleaded guilty, Rodriek Smith challenges his 18-month sentence for transporting an alien, in violation of 8 U.S.C. §§ 1324(a)(l)(A)(ii), (a)(l)(B)(i). At issue is whether the district court erred in imposing an enhancement pursuant to advisory Guidelines § 2Ll.l(b)(5) (the enhancement) (applicable “[i]f the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person”). AFFIRMED. I.

Smith, a commercial tractor-trailer driver, was stopped in April 2005 by Border Patrol Agents at a highway border-patrol checkpoint north of Laredo, Texas. After a canine alerted to the presence of concealed contraband or persons in the tractor’s cab, the Agents discovered five undocumented aliens concealed in the cab’s sleeper compartment. Three of them were concealed in storage compartments located underneath the sleeper compartment’s bed (compartments). At sentencing, the district court overruled Smith’s objection to the enhancement, which had been recommended by the presentence investigation report.

In doing so, the district court relied on the Agents’ photographs of the three aliens concealed in the compartments and found, inter alia: the aliens were “scrunched up” in them, which were “clearly meant for nothing but storage”; “if you have some sort of accident [that] ... causes [the top of the compartments] to be difficult to lift up, [the aliens] are going to be trapped”; and the aliens could not, while in the compartments, see their surroundings to take precautions in case of an accident.

The enhancement, coupled with an aeeeptance-of-responsibility adjustment, resulted in an advisory Guidelines sentencing range of 18-24 months imprisonment. II. Notwithstanding United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (rendering Guidelines advisory), a district court must still properly determine the Guidelines range as part of the sentencing process. E.g., United States v. Simmons, 470 F.3d 1115, 1128-29 (5th Cir.2006), petition for cert. filed (U.S. 16 Feb. 2007) (No. 06-9562). In that regard, its

interpretation and application of the Guidelines are reviewed de novo-, its factual findings, only for clear error. E.g., id. at 1129. “A factual finding is not clearly erroneous if it is plausible in [the] light of the record read as a whole.” United States v. Villanueva, 408 F.3d 193, 203 (5th Cir.), cert. denied, 546 U.S. 910, 126 S.Ct. 268, 163 L.Ed.2d 241 (2005). Our court has recognized five non-exclusive factors to be considered when applying the § 2Ll.l(b)(5) enhancement, which include: an alien’s ability to exit the vehicle quickly; and the danger to him in the event of an accident. See United States v.

Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir.2006). As discussed supra, the district court relied on photographs, the accuracy of which Smith does not dispute, to make findings regarding these factors. Smith does not show these findings are clearly erroneous. Accordingly, the enhancement was not erroneous. See id. at 890; see also United States v. Rodriguez-Mesa, 443 F.3d 397, 403 (5th Cir.2006) (enhancement not erroneous where district court relied on photographs indicating “it would have been difficult to extricate [the alien]”). III. For the foregoing reasons, the judgment is AFFIRMED. 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.