The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on August 13, 2008:

• U.S. v. Garza (Smith, DeMoss, Stewart, JJ.; opinion by Smith, J.) (appeal from S.D. Tex.). Vacating district court’s sentence enhancement for creating “substantial risk of death or serious bodily injury to another person” in sentencing defendant who pled guilty to transporting an unlawful alien, and remanding for resentencing. The district court invoked the sentencing enhancement because the unlawful aliens were “unsecured” in the cab of his pickup truck, and had been subjected to harsh conditions in hiking for hours through the south Texas brush to get around immigration checkpoints, activities that the district court found should have been reasonably foreseeable to the defendant. The Fifth Circuit held that the defendant, as a driver for the unlawful aliens who picked them up after their hike, could not be held responsible for the conditions on their trek before he picked them up; and that there is not per se rule that transporting unlawful aliens through the south Texas brush inherently is an activity with a substantial risk of bodily injury.
• U.S. v. Fuentes-Oyervides (Higginbotham, Stewart, Southwick, JJ.; per curiam opinion) (appeal from S.D. Tex.). Affirming sentence of defendant to 37 months imprisonment and three years supervised release for attempting to enter the country illegally. The Fifth Circuit held that the defendant’s prior Ohio state conviction for drug trafficking constituted a “drug trafficking offense” for purposes of the federal Sentencing Guidelines, articulating the standard that “an individual who prepares for shipment, ships, transports, delivers, prepares for distribution, or distributes a controlled substance while he knows or should know that the substance is intended for sale, commits an act of distribution under the Guidelines.” Slip op. at 5.