FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-50898 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00620-BTM

CARLOS TORRES-FLORES,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted

December 5, 2006—Pasadena, California

Filed September 4, 2007

Before: Stephen Reinhardt, Alex Kozinski and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Kozinski;

Partial Concurrence and Partial Dissent by Judge Ikuta

11441
COUNSEL

Matthew C. Shaftel and Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, California, for the

defendant-appellant. 

Carol C. Lam, United States Attorney for the Southern District of California, San Diego, California; Roger W. Haines,

Jr., Assistant United States Attorney, San Diego, California;

Christopher P. Tenorio, Assistant United States Attorney, Los

Angeles, California, for the plaintiff-appellee. 

11444 UNITED STATES v. TORRES-FLORES
OPINION

KOZINSKI, Circuit Judge: 

We address whether the district court erred in refusing to

give a lesser-included-offense instruction to the jury, and

whether defendant was eligible for a sentencing enhancement

pursuant to U.S.S.G. § 2L1.1(b)(5) (2005)1 for transporting an

alien in a manner creating a “substantial risk of death or serious bodily injury.” 

Facts

Carlos Torres-Flores drove up to the San Ysidro Port of

Entry in an extended-cab pickup on March 23, 2005.

Although he told the border inspector he had nothing to

declare, the inspector became suspicious and proceeded to

investigate. When the inspector opened the driver’s side door,

he saw a “big hump” in the carpet behind the back seat. That

“hump” turned out to be Fortino Marquez-Cruz, an alien who

lacked authorization to enter the United States. Defendant was

arrested and charged with bringing an unauthorized alien to

the United States without presenting him for inspection at the

port of entry, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). He

was convicted and sentenced to 30 months imprisonment. 

On appeal, defendant challenges the district court’s decision not to give a lesser-included-offense instruction and its

decision, at sentencing, that defendant was eligible for an

enhancement pursuant to U.S.S.G. § 2L1.1(b)(5) (2005).2

1This provision is currently codified at U.S.S.G. § 2L1.1(b)(6) (2006).

2Defendant also claims that the district court erred in refusing to give

an instruction on derivative citizenship. Because the record contains less

than a scintilla of evidence that Marquez-Cruz was a derivative citizen, we

cannot conclude that the district court abused its discretion in refusing to

give the proffered instruction. United States v. Wofford, 122 F.3d 787, 789

(9th Cir. 1997). 

UNITED STATES v. TORRES-FLORES 11445
Analysis

[1] 1. Section 1324(a)(2) makes it both a felony and a misdemeanor to knowingly or recklessly bring to the United

States “an alien [who] has not received prior official authorization to come to, enter, or reside in the United States.”

Whether the crime is a misdemeanor, punishable by no more

than one year imprisonment, or a felony, punishable by up to

15 years imprisonment, depends on the existence of certain

aggravating factors laid out in subsections

1324(a)(2)(B)(i)-(iii). In addition to the elements specifically

listed in the statutory text, we have held that the felony

offense contains an implied specific intent element, namely

that defendant have acted with intent to “violate immigration

laws.” United States v. Barajas-Montiel, 185 F.3d 947,

952-53 (9th Cir. 1999); see also United States v. Nguyen, 73

F.3d 887, 894 n.4 (9th Cir. 1995) (noting that when criminal

intent is an implied element of a crime it “is no less an element of the offense here than if it had been expressly provided for in the statute”). 

[2] Defendant claims that the district judge erred in refusing to instruct the jury that it could find defendant guilty of

a misdemeanor offense under section 1324(a)(2)(A) while

acquitting him of a felony offense under section

1324(a)(2)(B). A defendant is entitled to a lesser-included

instruction if he shows that: 1) “the offense on which instruction is sought is a lesser-included offense of that charged” and

2) that the “jury rationally could conclude that the defendant

was guilty of the lesser-included offense but not of the greater.” United States v. Pedroni, 958 F.2d 262, 267-68 (9th Cir.

1992).3 Everyone agrees that the misdemeanor offense here

3We have yet to resolve whether a defendant’s right to a lesser-included

instruction in a noncapital case springs solely from Fed. R. Crim. P. 31(c)

or also from the Fifth Amendment Due Process Clause. Compare Keeble

v. United States, 412 U.S. 205, 208 (1973) (noting the federal common

law and Rule 31(c) provide a right to such instruction), with Beck v. Ala11446 UNITED STATES v. TORRES-FLORES
contains all of the elements of the felony, minus the specific

intent requirement and the aggravating factors, and is therefore a lesser included within the greater felony offense. The

parties dispute whether the district court abused its discretion

in concluding that a rational jury could not have convicted

defendant of the lesser offense while acquitting as to the

greater. See United States v. Naghani, 361 F.3d 1255, 1262

(9th Cir. 2004) (after we’ve determined that the charged

offense contains all the elements of a lesser offense, we

review the decision not to give a lesser-included instruction

for abuse of discretion). 

On this record, a rational jury could not have doubted that

the statutory aggravating factor referenced in the indictment

was present—that the alien was “not upon arrival immediately

brought and presented to an appropriate immigration officer

at a designated port of entry.” See 8 U.S.C.

§ 1324(a)(2)(B)(iii). The primary inspector at the port of

entry, Agent Gibbs, testified that defendant failed to present

Marquez-Cruz for inspection, an account backed up by the

referral slip Gibbs filled out before sending defendant to secondary. Although defendant attacked the credibility of the

agent on other grounds, defendant never contested that

Marquez-Cruz was not presented to the agent for inspection.

bama, 447 U.S. 625 (1980) (holding that a defendant in a capital case has

a due process right to a lesser-included instruction when the facts would

allow the jury to impose a life sentence rather than death). Beck left open

whether the due process right extends to defendants in noncapital cases.

447 U.S. at 638 n.14 (“We need not and do not decide whether the Due

Process Clause would require the giving of such instructions in a noncapital case.”). While defendant here asserts a right under both provisions, we

also need not resolve the issue, because, to the extent the Due Process

Clause affords defendants greater protections than Rule 31(c), it would not

affect the outcome of this case. The due process right recognized in Beck

applies only “when the evidence would have supported” conviction of the

lesser offense but acquittal of the greater. 447 U.S. at 627 (internal quotation marks omitted). For the reasons we explain below, such is not the

case here. See pages 11448-50 infra. 

UNITED STATES v. TORRES-FLORES 11447
When proposed instructions were being discussed, counsel for

defense did not object to the district judge’s observation that

“there is no dispute” as to this element. And, in closing argument, defense counsel conceded that Agent Gibbs “found”

Marquez-Cruz behind the back seat. Indeed, any assertion that

defendant had presented the alien for inspection would have

contradicted Torres-Flores’ entire defense—that he was a

“blind mule” who drove to the port of entry unaware that

Marquez-Cruz was hiding behind his back seat. 

[3] The only real question is whether the jury could have

convicted defendant of the misdemeanor without also finding

that he acted with the intent that would convert the crime into

a felony. Barajas-Montiel defined the implicit intent element

in a section 1324(a)(2)(B) offense as a specific intent “to violate immigration laws.” 185 F.3d at 953. In applying this

requirement, we have held that the government need not

prove that defendant intended to violate Title 8 of the U.S. Code.4

In a later smuggling case, United States v. You, 382 F.3d 958

(9th Cir. 2004), we held that acting with “the purpose of

avoiding [the aliens’] detection by immigration authorities” is

“synonymous with having acted with necessary intent as

required in Barajas-Montiel.” Id. at 966 (alterations in original) (internal quotation marks omitted). 

[4] In order to convict defendant of either the misdemeanor

or the felony, the jury had to find that defendant “knowingly”

brought Marquez-Cruz to the United States—in other words,

that he was aware of Marquez-Cruz’s presence in the vehicle.5

4Such an element would be a rare novelty in our legal system. Just as

“ignorance of the law or a mistake of law is no defense to criminal prosecution,” Cheek v. United States, 498 U.S. 192, 199 (1991), knowledge of

the law is almost never an element of a crime. 

5The jury was specifically instructed that it could convict only if it

found that defendant “knowingly brought Fortino Marquez-Cruz to the

United States.” Although the text of the statute does not contain an express

mens rea element that applies to the act of “bringing” an alien to the

11448 UNITED STATES v. TORRES-FLORES
As already noted, there was no dispute that defendant did not

present Marquez-Cruz for inspection. According to You, this

is tantamount to an intent to violate the immigration laws.

Torres-Flores argues, however, that he may have had a different motive for failing to present Marquez-Cruz for inspection,

namely that Marquez-Cruz may have wanted to avoid confronting law enforcement officers for a non-immigrationrelated reason, such as a fear that he would be found to have

violated probation. There is no support in the record for any

such finding. In any event, that Marquez-Cruz may have had

a non-immigration-related reason for wishing to avoid detection does not change the fact that Torres-Flores knowingly hid

him from immigration authorities and thus (according to You)

acted with the intent to violate the immigration laws. Regardless of defendant’s subjective reasons for failing to present

Marquez-Cruz for inspection, a rational jury could not have

found that defendant lacked the requisite intent while also

finding that he knowingly helped Marquez-Cruz evade detection by immigration authorities. The district court therefore

did not abuse its discretion in denying the lesser-includedoffense instruction. 

2. Defendant also challenges the district court’s determination that the offense involved “a substantial risk of death or

serious bodily injury to another person,” a determination that

resulted in a 6-level increase in his offense level and more

than doubled the applicable Guidelines range from 12-18

months to 30-37 months. See U.S.S.G. § 2L1.1(b)(5) (2005).

United States, we’ve recognized that section 1324(a)(2) “provides for

criminal penalties for any person who knowingly brings an ‘unauthorized’

alien into the United States.” Gete v. I.N.S., 121 F.3d 1285, 1288 n.2 (9th

Cir. 1997) (emphasis added). To construe the prefatory clause of section

1324(a)(2) otherwise would render the misdemeanor a strict liability

crime, a species of offense that is heavily disfavored in our legal system.

See Dennis v. United States, 341 U.S. 494, 500 (1951) (“The existence of

a mens rea is the rule of, rather than the exception to, the principles of

Anglo-American criminal jurisprudence.”). 

UNITED STATES v. TORRES-FLORES 11449
The extended-cab pickup truck defendant was driving had

been modified to create additional space for a passenger to

hide behind the back seat. Border agents discovered the alien

passenger, Marquez-Cruz, hiding in this makeshift compartment. 

[5] We start with the observation that, although vehicular

travel is generally quite safe, it is not risk-free. Every passenger traveling on our highways faces a small, but non-trivial,

risk of death or injury.6 This baseline risk is inherent in all

vehicular travel and must therefore be disregarded in determining whether the offense was committed in a manner that

involved a “substantial risk of death or serious bodily injury

to another person.” We focus on the ways in which the

method of transporting the alien increased the risk of death or

injury beyond that faced by a normal passenger traveling on

our streets and highways. The risk could be increased in a

number of ways: (1) The driver could increase the likelihood

of an accident by taking a dangerous route (e.g., off-road) or

driving in a dangerous manner (e.g., recklessly or drunk); (2)

the method of transportation could increase the likelihood of

an accident (e.g., a severely overloaded vehicle); (3) the

method of transportation could increase the risk of an injury

even in the absence of an accident (e.g., passengers transported with insufficient ventilation or subject to injury from

moving mechanical parts); or (4) the method of transportation

could increase the risk that an accident, if it should occur,

would cause injury or death (e.g., passengers transported in a

manner that makes them more likely to be injured by crumpled metal or shattered glass than if they had been seated normally). 

[6] The district court found an increase in only the last of

6Fifteen of every 100,000 Americans died in a car crash in 2005; 911

more were injured. Nat’l Highway Traffic Safety Admin., Traffic Safety

Facts 2005 verso (2006), available at http://www-nrd.nhtsa.dot.gov/Pubs/

TSF2005.pdf. 

11450 UNITED STATES v. TORRES-FLORES
those four risks, namely, that if an accident occurred,

Marquez-Cruz was more likely to be hurt. The district court

didn’t find that defendant’s conduct increased the likelihood

of an accident; and the court specifically found that MarquezCruz’s placement didn’t increase the risk of injury absent an

accident: “If there’s no collision, there’s no problem.”

7

 We

must therefore decide whether the increased risk of injury in

case of an accident was significant enough to merit a 6-level

enhancement in the offense level. 

In making this determination, we accord “considerable

weight” to the Guidelines’ application notes, United States v.

Fine, 975 F.2d 596, 599 n.4 (9th Cir. 1992) (en banc), which

provide examples that give some indication of what kinds of

risks substantially increase a concealed passenger’s chances

of injury or death over and above the normal danger of vehicular travel. What is notable about these examples—

“transporting persons in the trunk or engine compartment of

a motor vehicle, carrying substantially more passengers than

the rated capacity of a motor vehicle”—is that in each, unlike

here, the means of travel either exacerbates the likelihood of

an accident, subjects the passenger to a risk of injury even

during an accident-free ride, or both.8

7The dissent suggests that the district court found that Marquez-Cruz

was subject to injury even in the absence of an accident because of the

compartment’s sharp metal edges, see Dissent at 11454, 11461, but this

contradicts the district court’s findings quoted in the text. Moreover, the

district court’s discussion makes clear that it was concerned only with the

dangers Marquez-Cruz would have faced if defendant had crashed the

truck: “[I]f there’s a collision . . . what’s going to happen? . . . Metal

bends. Things happen. Fires occur. Explosions occur. And this person . . .

can’t get out . . . .” 

8Riding in the trunk exposes the passenger to the risk of suffocation or

heat stroke. See U.S. Dep’t of Transp., Motor Vehicle Trunk Entrapment

Report to Congress (2000), available at http://www.nhtsa.dot.gov/cars/

problems/studies/Trunk/#ter3 (“The combination of high temperature,

humidity, and poor ventilation all contribute to the extreme danger of car

trunks.”). Passengers stowed in engine compartments presumably face

similar harms in addition to the risk of being injured by engine heat or

moving components. Severely overloading a vehicle is likely to make it

more difficult to handle, thereby increasing the likelihood of an accident.

UNITED STATES v. TORRES-FLORES 11451
[7] Consistent with the examples in the application notes,

our decisions have upheld § 2L1.1(b)(5) enhancements for

vehicular travel only when the circumstances increased the

likelihood of an accident or the chance of injury without an

accident. United States v. Hernandez-Guardado, 228 F.3d

1017, 1027-28 (9th Cir. 2000), involved overloaded vans with

passengers lying unrestrained on the floorboards. United

States v. Miguel, 368 F.3d 1150, 1152 (9th Cir. 2004),

involved the transportation of three individuals in the trunk of

a car in 100-degree heat. In United States v. RamirezMartinez, 273 F.3d 903, 916 (9th Cir. 2001), overruled on

other grounds by United States v. Lopez, 484 F.3d 1186 (9th

Cir. 2007) (en banc), defendant was found to have transported

“twenty people in a dilapidated van without seats or seat

belts.” 

This case is most similar to United States v. Dixon, 201

F.3d 1223 (9th Cir. 2000), which involved the transportation

of aliens in the hatchback area of a vehicle. Id. at 1233. We

recognized that a hatchback—like the makeshift compartment

in this case—is similar to the application note’s example of a

trunk in that neither is designed to transport people. A passenger riding there is therefore more likely to be injured in the

event of an accident than someone riding in the same car who

is securely strapped into a passenger seat. Nonetheless, we

found that the incremental danger posed by riding in a hatchback was not so “obvious” as to render the overall danger

“substantial” without additional evidentiary support. 

[8] In addition to the application notes and our caselaw, we

also consider the magnitude of the enhancement. Section

2L1.1(b)(5) raised defendant’s offense level to 18—a 6-level

increase. That’s greater than the 2-level increase for recklessly endangering others while fleeing from law enforcement, see U.S.S.G. § 3C1.2 (2005), greater than the 2-level

increase for using a minor in the commission of the offense,

see id. § 3B1.4, greater than the 4-level increase for leading

a criminal conspiracy, see id. § 3B1.1(a), and greater than the

11452 UNITED STATES v. TORRES-FLORES
4-level increase for causing death by possessing biochemical

weapons, see id. § 2M6.1. The magnitude of the increase suggests that this enhancement is meant to apply only when the

additional risk to the concealed passenger is significantly

greater than the risks normally borne by ordinary passengers

during normal vehicular travel. Here there was some additional risk, but only in the highly unlikely event of an accident.9

We do not think that the incremental risk was significant

enough to warrant doubling or even tripling defendant’s sentence.10

The district court erred in applying the Guidelines to the

facts of this case.11

* * *

[9] Because a rational jury could not have convicted defendant of the lesser misdemeanor offense outlined in 8 U.S.C.

§ 1324(a)(2)(A), without also convicting him of the felony

9The probability of defendant getting in an accident was probably close

to 0.03%. We calculate that probability based on the defendant’s plan to

drive 135 miles from the San Ysidro checkpoint to Marquez-Cruz’s destination in Los Angeles, and the frequency of accidents in March 2005-203

crashes for every 100 million miles driven. Nat’l Highway Traffic Safety

Admin., n.6 supra, at 44. 

10The district court sentenced defendant to the bottom of the enhanced

sentencing range of 30-37 months. The bottom of the un-enhanced sentencing range was 12 months. 

11We recognize that there is an intracircuit conflict regarding how we

review application of the Guidelines to the facts. Compare United States

v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005) (“This court reviews . . .

the district court’s application of the Sentencing Guidelines to the facts of

this case for abuse of discretion.”), with United States v. Williamson, 439

F.3d 1125, 1137 n.12 (9th Cir. 2006) (“We review the interpretation and

application of the Guidelines de novo.”); see also United States v. Staten,

466 F.3d 708, 713 n.3 (9th Cir. 2006) (recognizing the conflict). But

because we would reverse even under the more deferential abuse of discretion standard, it is unnecessary for us to call the case en banc to resolve

the conflict. 

UNITED STATES v. TORRES-FLORES 11453
offense, the district court did not abuse its discretion in refusing to give a lesser-included instruction. But, because we conclude that the district court erred in finding that defendant was

subject to a sentencing enhancement under U.S.S.G.

§ 2L1.1(b)(5) (2005), we vacate his sentence and remand for

re-sentencing. 

AFFIRMED IN PART, VACATED IN PART AND

REMANDED.

IKUTA, Circuit Judge, concurring in part and dissenting in

part: 

I join section one of the majority’s opinion, but dissent

from its holding in section two. The majority’s holding that

the district court abused its discretion in determining that the

U.S.S.G. § 2L1.1(b)(5) enhancement applied to TorresFlores’ offense is based on evidence not in the record and

conflicts with our normal procedure for reviewing Guidelines

sentences.

I.

Torres-Flores concealed Marquez-Cruz in a carved-out

compartment located beneath the rear passenger seat of an

extended cab pick-up. Torres-Flores’ counsel estimated that

the rear bench seat, which was placed over Marquez-Cruz’s

body, weighed approximately forty to fifty pounds (not

accounting for the speakers and the child safety seat that

rested on top of the bench seat during Marquez-Cruz’s transportation). The bench seat was not bolted to the floor of the

pick-up and Marquez-Cruz was placed in the compartment

without any restraints. Photographs of the vehicle revealed

protruding metal edges located at the sides of the carved-out

compartment. 

11454 UNITED STATES v. TORRES-FLORES
After examining color photographs of the vehicle and hearing extensive argument from the parties, the district court set

forth detailed factual findings, which the majority does not

dispute. 

[W]hen you get down to common sense, it’s very

simple: that there was an area that was carved out of

the bottom. It’s not smoothed out. It’s not padded.

There are some edges, and you can’t tell how sharp

the edges are, but there are edges if you look in

Exhibit H, that color photograph, and Exhibit I. The

person is in that compartment. He pulls the rug over

him, and then he pulls the seat back over him. The

seat is not bolted in place. And so moving back and

forth, just the motion of the car runs the risk of the

seat popping out and moving for the very reason that

[the defense] argue[s] that [Marquez-Cruz] can lift

the seat up with great ease. I mean that’s just one

thing. 

But one has to look at if there’s a collision, and collisions happen, what’s going to happen? The car is not

going to be—the vehicle’s not going to be in perfect

shape where metal is not going to be bent. Metal

bends. Things happen. Fires occur. Explosions

occur. And this person is in a situation where he

can’t get out unless, even taking the facts in the light

most favorable to [the defense], he pulls the rug back

— assuming he wasn’t injured and his head didn’t

hit one of the sides of the compartment here and he’s

still conscious — he has to pull the rug back, push

the seat up, and then somehow get over the seat. The

seat’s now pushed against the driver’s seat. Then get

out of the vehicle when the clock is ticking and seconds are ticking and this vehicle can explode from a

collision or there’s other fire that happens in collisions. I wouldn’t want to be in that situation. 

UNITED STATES v. TORRES-FLORES 11455
Common sense tells me that that’s a dangerous, a

serious risk of personal injury or even death to ride

in a vehicle that way. And I think that’s what’s

meant. 

The Dixon case is a really specific case that dealt

with hatchbacks where one could get out very easily.

This is not something that someone can get out to the

degree of speed that one can get out with a hatchback. Again, if you look at the pictures, you see that

there is uneven metal, it’s not padded, and the person

is leaned against that uneven metal. And this is a

bad, bad situation. And it is one that the defendant

was aware of. It was his compartment and clearly fits

within intentionally, recklessly creating a sudden

risk of death or serious bodily injury. 

The facts are by proof beyond a reasonable doubt.

No one’s really disputing the facts. Whether you

have to force the front seat up or force it are not

really as irrelevant if you don’t have to force it up.

There[ ] are still a lot of obstacles to getting out of

this vehicle in a crash, assuming that one can do it.

[The defense] assume[s] [that in case of an accident,]

. . . the vehicle’s . . . going to be in the same condition that [it] is in now; it’s not. If it’s from the rear,

especially from the sides, that person is going to be

compressed. His head is going to be pushed against

the compartment without any padding. He’s not

restrained at all. This is not a good situation. 

So I hold the six-level increase is appropriate. 

The district court’s conclusion is entirely consistent with

the plain language of the Guidelines. Section 2L1.1 addresses

offenses involving the smuggling, transportation, or harboring

of unlawful aliens. Subsection (b)(5) of that provision directs

the sentencing court to increase the defendant’s offense level

11456 UNITED STATES v. TORRES-FLORES
“[i]f the offense involved intentionally or recklessly creating

a substantial risk of death or serious bodily injury to another

person.” U.S.S.G. § 2L1.1(b)(5) (2005). Application Note 6

further explains that § 2L1.1(b)(5) applies to “a wide variety

of conduct,” including: (1) “transporting persons in the trunk

or engine compartment of a motor vehicle,” (2) “carrying substantially more passengers than the rated capacity of a motor

vehicle,” and (3) “harboring persons in a crowded, dangerous,

or inhumane condition.” U.S.S.G. § 2L1.1 cmt. n.6 (2005).1

As the majority recognizes, the plain language of

§ 2L1.1(b)(5) applies to transporting passengers in a way that

“could increase the risk that an accident, if it should occur,

would cause injury or death.” See maj. op. at 11450. 

Our case law has echoed the expansive language of the

application note. Our prior decisions have held that “[n]o precise formula undergirds the determination of what constitutes

substantial risk.” United States v. Carreno, 363 F.3d 883, 890

(9th Cir. 2004), vacated and remanded on other grounds, 543

U.S. 1099 (2005). In this spirit, we have emphasized that district courts should “carefully evaluat[e] the cumulative effect

of the interrelated factors supporting the enhancement” and

“assess the degree of risk created by the totality of the defendant’s conduct.” Id. The Fifth Circuit has expressly held that

transporting aliens in a manner that exposes them to a substantial risk of serious bodily injury in the event of an accident is sufficient to uphold a § 2L1.1(b)(5) enhancement. See

United States v. Zuniga-Amezquita, 468 F.3d 886, 890 (5th

Cir. 2006).

1

Indeed, the language of Application Note 6 to U.S.S.G. § 2L1.1 is

broad enough to cover the precise conduct in this case. The application

note explains that the “wide variety of conduct” meriting the enhancement

includes “harboring persons in a crowded, dangerous, or inhumane condition.” U.S.S.G. § 2L1.1 cmt. n.6 (2005). This would include TorresFlores’ conduct in concealing Marquez-Cruz in a condition the district

court correctly found to be “dangerous.” See Webster’s New World College Dictionary 647 (4th ed. 2005) (defining to “harbor” as “to serve as,

or provide, a place of protection to; shelter or house; conceal or hide”). 

UNITED STATES v. TORRES-FLORES 11457
The district court made the common sense determination

that transporting an alien unrestrained by a seatbelt, crammed

into a hidden compartment, and placed under a forty or fifty

pound bench seat which impeded his ability to exit posed serious dangers in the event of an accident. The conclusion that

Torres-Flores’ conduct created “a substantial risk of death or

serious bodily injury to another person” was undoubtedly correct.2

II.

The majority overturns the district court’s straightforward

application of the Guidelines on the ground that the likelihood

of an accident was not significant enough to merit a 6-level

enhancement in the offense level. Maj. op. at 11452-53. I disagree with this conclusion for two reasons. 

First, the majority bases its conclusion that an accident was

“highly unlikely,” and therefore the district court erred in

applying the enhancement, on the majority’s sua sponte

review of highway statistics that were not part of the record,

and are at best inconclusive. See maj. op. at 11453 & n.9.

Extrapolating from general National Highway Traffic Safety

Administration statistics, the majority derives the surprisingly

precise determination that the likelihood of Torres-Flores getting into an accident “was probably close to 0.03%.” The

majority explains that it “calculate[s] that probability based on

the defendant’s plan to drive 135 miles from the San Ysidro

checkpoint to Marquez-Cruz’s destination in Los Angeles,

and the frequency of accidents in March 2005—203 crashes

for every 100 million miles driven.” Maj. op. at 11453 n.9. 

The statistical information provided by the National High2As the majority notes, there is an intracircuit conflict regarding

whether we review the district court’s application of the Guidelines to the

facts of this case de novo or for an abuse of discretion. See maj. op. at

11453 n.11. I would affirm the district court under either standard. 

11458 UNITED STATES v. TORRES-FLORES
way Traffic Safety Administration, and the majority’s factual

extrapolation from that information, were not in the record

before the district court and should not affect our review.

Appellate courts generally consider only the “record before

the trial judge when his decision was made.” Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (internal quotation marks omitted). Moreover, “[i]t is rarely

appropriate for an appellate court to take judicial notice of

facts that were not before the district court.” Flick v. Liberty

Mut. Fire Ins. Co., 205 F.3d 386, 392 n.7 (9th Cir. 2000).

Even if such traffic statistics were an appropriate subject of

judicial notice, see Fed. R. Evid. 201(b) (requiring that facts

be “not subject to reasonable dispute”), it is inappropriate to

rely on such data where the government has had no notice or

opportunity to respond. Cf. Fed. R. Evid. 201(e) (“A party is

entitled upon timely request to an opportunity to be heard as

to the propriety of taking judicial notice and the tenor of the

matter noticed.”). Moreover, we have previously expressed

doubt about relying on general statistics as proof of an ultimate issue in an individual case. See Haugen v. Brosseau, 351

F.3d 372, 389 (9th Cir. 2003) (relying on general statistics of

the dangers of high-speed car chases was improper, given that

the statistics were not supplied by the parties, or responded to

by the party adversely affected; also noting the Supreme

Court’s rejection of this general statistical approach “to prove

dangerousness in an individual case”). 

More important, the results of the majority’s extrapolation

are highly questionable. For example, the majority’s analysis

fails to take into account statistics showing that because

Torres-Flores was a twenty-five year-old male, he was over

36 % more likely to be in a crash than the general population.

Nat’l Highway Traffic Safety Admin., Traffic Safety Facts

2005 98 (involvement rate of 7,354 compared to 5,398). The

majority’s calculation also fails to take into account other factors that could affect the probability of Torres-Flores getting

into an accident, including the effect of driving a light truck,

driving where the speed limit was 55 miles per hour or higher,

UNITED STATES v. TORRES-FLORES 11459
driving near the city of Chula Vista, and driving in the state

of California. See id. at 17, 51, 148, 176. It is a truism that statistics can be used to prove anything, and absent specific

information for drivers transporting concealed aliens from

San Ysidro to Los Angeles (information apparently not provided by the National Highway Traffic Safety Administration), the statistics relied on by the majority are simply not an

appropriate basis for determining that the district court abused

its discretion. 

Second, I question the majority’s analytical approach. The

majority concludes that because the § 2L1.1(b)(5) enhancement resulted in a 6-level increase in defendant’s offense

level, the district court abused its discretion in determining

that the § 2L1.1(b)(5) enhancement was applicable to the facts

of the case. Maj. op. at 11452-53. But our determination as to

whether a district court was correct in applying the law to the

facts should not vary based on the size of the sentencing

enhancement that results from this analysis. Torres-Flores

himself concedes that “the guidelines do not suggest that the

effect of the enhancement in terms of levels of increase to the

base offense level should be factored into the substantive factual analysis.” Although the disproportionate impact of an

otherwise applicable sentencing factor may raise a need for

additional procedural protections in fact-finding, see, e.g.,

United States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001),

Torres-Flores does not raise this issue. Under our procedure,

if the sentencing factor is applicable by its terms, a court then

turns to consider whether the sentence suggested by the advisory Guidelines is unreasonable in light of the § 3553(a) factors.3

3We follow “a two-step procedure for reviewing sentences imposed following the date the Supreme Court issued its opinion in Booker.” United

States v. Mix, 457 F.3d 906, 911 (9th Cir. 2006) (citing United States v.

Cantrell, 433 F.3d 1269, 1279-81 (9th Cir.2006)). First, we determine

whether the district court properly considered and applied the applicable

Sentencing Guidelines. Cantrell, 433 F.3d at 1279-81. If the district court

did not err in applying the Sentencing Guidelines, we review the sentence

for reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a).

Cantrell, 433 F.3d at 1280. The majority seemingly conflates these two

steps. 

11460 UNITED STATES v. TORRES-FLORES
Here there is no basis to conclude that Torres-Flores’ withinGuidelines sentence is unreasonable. See Rita v. United

States, ___ U.S. ___ (2007). 

The district court correctly applied U.S.S.G. § 2L1.1(b)(5)

in determining that the transportation of Marquez-Cruz in an

unprotected compartment with uncovered metal edges, unrestrained by a seatbelt, and prevented from ready egress by

forty to fifty plus pounds of material “created a substantial

risk of death or serious bodily injury.” Therefore, I would

affirm.

UNITED STATES v. TORRES-FLORES 11461