As a federal criminal defense lawyer who handles alien smuggling cases in federal courts in border cities in Texas, including Del Rio, Laredo, Alpine, El Paso, and Brownsville, I have had several cases in which the courts have considered increasing the defendant’s sentence because the number of people transported in a vehicle was more than the vehicle’s rated capacity for occupants. This is a common situation in alien smuggling cases. Normally, the fees for alien smuggling are per person, so more persons smuggled means more fees to the smugglers. Alien smugglers are usually much more interested in profits than in passenger comfort, and each vehicle represents an expense as well as an additional risk of being caught. Therefore, smugglers tend to use as few vehicles as possible and to put large numbers of people in each one.
Will merely exceeding a vehicle’s rated capacity for occupants, by even one person, mean a longer sentence for alien smuggling? The answer to that is “no.” Then, how many people over the rated capacity will result in a longer sentence? There is not a specific number, but whether crowding should increase someone’s sentence should depend more on the conditions in the vehicle than on numbers alone.
Legally, the reason exceeding a vehicle’s rated capacity can increase a sentence is because of section 2L1.1 of the Federal Sentencing Guidelines. That section directs judges to increase a defendant’s Offense Level, which reflects the seriousness of the crime, if the alien smuggling involved recklessly creating a substantial risk of death or serious bodily injury. See U.S.S.G. § 2L1.1(b)(6). Application Note 3 to section 2L1.1 says that reckless endangerment can include “carrying substantially more passengers than the rated capacity of a motor vehicle or vessel.” Notably, the Sentencing Guidelines do not define “substantially more” in this context.
For federal alien smuggling cases in Texas, the relevant case law, however, indicates that judges should not simply look at numbers of persons. Instead, the case law calls for a functional approach that considers the conditions in which the passengers were actually being transported.
The federal appeals court that covers Texas is the Fifth Circuit Court of Appeals. In United States v. Zuniga-Amezquita, 468 F.3d 886 (5th Cir. 2006), the Fifth Circuit rejected a “bright-line test” for reckless endangerment and instead held that “[t]he contours of this sentencing enhancement depend on a careful application of the guidelines on a case-specific basis.” Id. at 887, 888. The Fifth Circuit therefore identified five factors to consider when applying the reckless endangerment enhancement: “the availability of oxygen, exposure to temperature extremes, the aliens’ ability to communicate with the driver of the vehicle, their ability to exit the vehicle quickly, and the danger to them if an accident occurs.” Id. at 889.
Cases in the Fifth Circuit have recognized that crowding can constitute reckless endangerment when people in a vehicle are piled on top of each other, jammed in between seats, lying next to loose boxes or luggage, or otherwise being transported in ways that the Fifth Circuit has recognized as dangerous. See United States v. Mata, 624 F.3d 170, 174 (5th Cir. 2010) (collecting cases). On the other hand, according to the Fifth Circuit, the fact that persons were sitting in the back of a full-size cargo van without seatbelts does not implicate the reckless endangerment enhancement. See United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005) (holding that aliens lying in the cargo area of a minivan were not subject to reckless endangerment); Zuniga-Amezquita, 468 F.3d at 888 (comparing persons transported in an open pickup truck bed to persons transported in a minivan in Solis-Garcia).
The Fifth Circuit case that comes closes to upholding a finding of reckless endangerment based solely on numbers is United States v. Cardona-Lopez, 602 F.App’x. 191 (5th Cir. 2015). In that case, the Fifth Circuit held that the district court’s finding of reckless endangerment was not clearly erroneous when the defendant’s vehicle was transporting twice the number of people for which the vehicle had a rated capacity and the defendant was speeding on a busy highway. See id. at 192.
The case law in the Fifth Circuit places far more emphasis on the conditions in the vehicles than on pure numbers. Therefore, when representing someone accused of alien smuggling, it is important to focus on the facts of the case and whether they show dangerous crowded conditions.
The issue of reckless endangerment based on substantially exceeding a vehicle’s rated capacity comes up in the context of the Presentence Report. That report will include a Probation Officer’s calculation of a defendant’s Offense Level, and that Offense Level will be used to calculate a range of months that the Sentencing Guidelines recommend for the defendant’s sentence. The Offense Level will be higher if reckless endangerment applies, which will result in a higher recommended range of months in prison.
The defendant’s lawyer can file a written objection to the Presentence Report if it applies reckless endangerment and the lawyer believes it should not apply. When there is an objection, the judge will have to rule on the objection at the sentencing hearing.
If you or a loved one has been charged with alien smuggling in a federal court in Del Rio, Laredo, El Paso, Alpine, or Brownsville, you should hire a lawyer who understands the details of how the Federal Sentencing Guidelines apply in alien smuggling cases and who knows how to make persuasive arguments, using the law and the facts of the case, to prevent a defendant from getting a sentence that is too long.