USA v. Hernandez, No. 22-50263 (5th Cir. 2022)
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Defendant pleaded guilty to transporting illegal aliens for financial gain. At his original sentencing, the district court applied an enhancement for intentionally or recklessly creating a risk of death or serious bodily harm to another person and then sentenced Defendant to twenty-seven months of imprisonment. Defendant appealed, and the Fifth Circuit vacated the sentence.
Relying on the new evidence, the district court again applied the enhancement and sentenced Defendant to the same sentence that he had received before. Defendant appealed, arguing both that the district court exceeded this court’s mandate by agreeing to hear new evidence and that the new evidence introduced by the Government is still insufficient to warrant the imposition of the enhancement.
The Fifth Circuit affirmed holding that Carales-Villalta binds the court and is dispositive here. Moreover, even under Defendant’s preferred approach, the district court did not err in hearing additional evidence related to the Section 2L1.1(b)(6) enhancement on remand. Further, the court has previously held that transporting aliens in a manner that significantly hinders their ability to exit the vehicle quickly creates a substantial risk of death or serious bodily injury. In other words, on resentencing the Government proved an aggravating factor that was not considered by this court during Defendant’s first appeal. The presence of that aggravating factor is dispositive here, as its presence is sufficient for the application of Section 2L1.1(b)(6) enhancement.
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