FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH ANTHONY BERNARDO,

Defendant-Appellant.

No. 15-50289

D.C. No.

3:15-cr-00614-BEN-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

March 7, 2016—Pasadena, California

Filed April 13, 2016

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit

Judges and Frederic Block,* Senior District Judge.

Opinion by Judge Ikuta

* The Honorable Frederic Block, Senior District Judge for the U.S.

District Court for the Eastern District of New York, sitting by designation.
2 UNITED STATES V. BERNARDO

SUMMARY**

Criminal Law

Affirming a sentence for bringing an unlawful alien into

the United States and aiding and abetting, the panel held that

the district court did not err in determining that transporting

a person by strapping her inside a compartment behind a

vehicle dashboard created a substantial risk of death or

serious harm, and therefore did not err in applying a six-level

enhancement pursuant to U.S.S.G. § 2L1.1(b)(6).

COUNSEL

Grant L. Eddy (argued), Chula Vista, California, for

Defendant-Appellant.

Laura E. Duffy, United States Attorney, Peter Ko, Assistant

United States Attorney, Lawrence E. Spong (argued),

Assistant United States Attorney, for Plaintiff-Appellee.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. BERNARDO 3

OPINION

IKUTA, Circuit Judge:

Joseph Bernardo appeals the district court’s application of

a six-point upward adjustment to his offense level for

“recklessly creating a substantial risk of death or serious

bodily injury to another person.” U.S.S.G. § 2L1.1(b)(6). 

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

On February 15, 2015, while Bernardo was waiting in line

at the San Ysidro Port of Entry, a dog alerted to his Ford

Windstar van. An officer conducted an inspection of the

vehicle and found a woman hidden in a compartment behind

the dashboard. A heavy-duty cargo strap around the midsection of the woman’s body strapped her in and held her up

in the compartment. After the officer cut the strap with his

knife, the woman climbed out of the compartment. She

appeared alert and unharmed. Upon questioning, she told the

officer that she was a citizen of Mexico and that Bernardo

had agreed to smuggle her into the United States illegally.

The government charged Bernardo with bringing an

unlawful alien into the United States in violation of 8 U.S.C.

§ 1324(a)(2)(B)(iii) and aiding and abetting an offense

against the United States in violation of 18 U.S.C. § 2. He

pleaded guilty to both charges without a plea agreement.

According to the presentence investigation report (PSR),

Bernardo’s violation of 8 U.S.C. § 1324 had a base offense

level of 12. U.S.S.G. § 2L1.1(a)(3). The PSR recommended

that the offense level be increased to 18 under § 2L1.1(b)(6)
4 UNITED STATES V. BERNARDO

of the Guidelines, which requires such an increase if “the

offense involved intentionally or recklessly creating a

substantial risk of death or serious bodily injury to another

person.” According to the PSR, the manner in which the

woman had been smuggled into the United States was “an

inhumane manner in which to transport a person in an area

not meant for human transport and created a substantial risk

of death or serious bodily injury.” The PSR also

recommended a two-level reduction for acceptance of

responsibility under § 3E1.1(a). The resulting total offense

level of 16 corresponded to a Guidelines range of 33 to 41

months, but the PSR recommended a lower sentence of 24

months and a three-year period of supervised release.

Bernardo filed objections to the PSR’s proposed

enhancement under § 2L1.1(b)(6). He argued that the heavyduty cargo strap holding the alien “was used to prevent injury

should an accident occur,” that the “alien was not

uncomfortable,” and that she was able to climb out of the

compartment using her own strength.

The district court held a sentencing hearing on June 15,

2015, noting that it had reviewed the PSR’s sentencing

recommendation and the parties’ arguments. At the hearing,

Bernardo’s counsel conceded that strapping the woman in the

dashboard compartment was “extremely serious” and agreed

that it constituted “pretty egregious conduct,” but he argued

that the PSR’s proposed enhancement of the offense level to

18 was improper because transporting an alien in the

dashboard compartment neither increased the risk of an

accident nor substantially increased the alien’s chance of

serious bodily injury or death. The district court rejected this

argument, concluding that being strapped inside a dashboard

was “an extremelyprecarious position to put an individual in”
UNITED STATES V. BERNARDO 5

and raised a “substantial risk situation.” Accordingly, the

district court imposed the enhancement.

The district court subsequently granted the government’s

motion to decrease the offense level by two levels in light of

Bernardo’s substantial assistance, see U.S.S.G. § 5K1.1,

resulting in an adjusted offense level of 13 with a Guidelines

range of 24–30 months. At a sidebar during the sentencing

hearing, the government moved for a further downward

variance. In consideration of the relevant factors under

18 U.S.C. § 3553, the district court imposed a 16-month

sentence, alongwith a three-year period of supervised release.

II

On appeal, Bernardo argues that the district court erred in

applying the six-point upward adjustment for “intentionally

or recklessly creating a substantial risk of death or serious

bodily injury to another person” under § 2L1.1(b)(6).

We review the district court’s factual findings for clear

error and its interpretation of the Sentencing Guidelines de

novo. United States v. Smith, 719 F.3d 1120, 1123 (9th Cir.

2013). There is a longstanding intracircuit conflict as to

whether we review the district court’s application of the

guidelines to the facts de novo or for abuse of discretion,

United States v. Sullivan, 797 F.3d 623, 641 n.13 (9th Cir.

2015), but because we would reach the same conclusion here

under either standard, we need not call this case en banc to

resolve the conflict.

“Even though the Guidelines are advisory, they are still

the ‘starting point and the initial benchmark’ for the

sentencing process.” United States v. Ellis, 641 F.3d 411,
6 UNITED STATES V. BERNARDO

415 (9th Cir. 2011) (quoting Kimbrough v. United States,

552 U.S. 85, 108 (2007)). Therefore, we “must first ensure

that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating)

the Guidelines range.” Gall v. United States, 552 U.S. 38, 51

(2007). We interpret the Guidelines as we would binding

federal regulations and interpret the commentary in the

Guidelines like “an agency’s interpretation of its own

legislative rules.” Stinson v. United States, 508 U.S. 36,

44–45 (1993). Thus, the “commentary in the Guidelines

Manual that interprets or explains a guideline is authoritative

unless it . . . is inconsistent with, or a plainly erroneous

reading of, that guideline.” United States v. Martin, 796 F.3d

1101, 1108 (9th Cir. 2015) (quoting Stinson, 508 U.S. at 38);

see also United States v. Jackson, 697 F.3d 1141, 1146 (9th

Cir. 2012).

A

The Guidelines section applicable to Bernardo’s offense

of conviction, § 2L1.1, specifies the base offense level and

enhancements for offenses involving smuggling, transporting,

or harboring an unlawful alien. Section 2L1.1(b)(6) of the

Guidelines provides: “If the offense involved intentionally or

recklessly creating a substantial risk of death or serious

bodily injury to another person, increase by 2 levels, but if the

resulting offense level is less than level 18, increase to level

18.” An offense qualifies for such an enhancement if it meets

the criteria set forth in Note 5 of the Application Notes to the

Guidelines, which states, in pertinent part:

Reckless conduct to which the adjustment

from subsection (b)(6) applies includes a wide

variety of conduct (e.g., transporting persons
UNITED STATES V. BERNARDO 7

in the trunk or engine compartment of a motor

vehicle; carrying substantially more

passengers than the rated capacity of a motor

vehicle or vessel; harboring persons in a

crowded, dangerous, or inhumane condition;

or guiding persons through, or abandoning

persons in, a dangerous or remote geographic

area without adequate food, water, clothing,

or protection from the elements).

U.S.S.G. § 2L1.1 cmt. n.5. Because the Application Note is

not inconsistent with or a plainly erroneous reading of

§ 2L1.1(b)(6), we defer to its reasoning. Stinson, 508 U.S. at

38. For instance, we have held that the transportation of

aliens in overcrowded vehicles, where the aliens lacked seats

or seatbelts, meets the criteria of “carrying substantially

more passengers than the rated capacity of a motor vehicle

[or] harboring persons in a crowded, dangerous, or inhumane

condition,” which is sufficient to create a substantial risk of

death or serious bodily injury. United States v. RamirezMartinez, 273 F.3d 903, 916 (9th Cir. 2001) (quoting

U.S.S.G. § 2L1.1 cmt. n.5), overruled on other grounds by

United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007); see

also United States v. Hernandez-Guardado, 228 F.3d 1017,

1027–28 (9th Cir. 2000).

We have noted that there is a baseline risk inherent in all

vehicular travel, and 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.” United

States v. Torres-Flores, 502 F.3d 885, 889 (9th Cir. 2007). 

The examples provided in Application Note 5 represent the

“kinds of risks [that] substantially increase a concealed

passenger’s chances of injury or death over and above the
8 UNITED STATES V. BERNARDO

normal danger of vehicular travel.” Id. at 890. Accordingly,

offense conduct may meet the criteria of § 2L1.1(b)(6) if it

involves similar types of risks. Id. For instance, offense

conduct that involves transportation over a more dangerous

route, a dangerous manner of driving, an unsafe vehicle,

insufficient ventilation, a risk of injury from moving

mechanical parts, or an increased 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),” may meet the criteria of

§ 2L1.1(b)(6). Id.; see also United States v. Miguel, 368 F.3d

1150, 1155–56 (9th Cir. 2004); United States v. GarciaGuerrero, 313 F.3d 892, 896–97 (5th Cir. 2002). By contrast,

transporting aliens in the hatchback area of a vehicle, without

more, does not give rise to a “substantial risk of death or

serious bodily injury” because unlike being locked in the

trunk of a car, an alien “easily could extricate himself” from

a hiding place under a hatchback cover. United States v.

Dixon, 201 F.3d 1223, 1233–34 (9th Cir. 2000); see also

Miguel, 368 F.3d at 1155 (distinguishing a closed trunk from

a trunk with the back seat pushed down such that it was open

to the main cabin of the car). Similarly, transporting an alien

covered by carpeting behind the back seat of an extended-cab

pickup truck did not involve “a substantial risk of death or

serious bodily injury” because transportation in a vehicle that

“had been modified to create additional space for a passenger

to hide behind the back seat,” created an incremental risk to

the alien “only in the highly unlikely event of an accident.” 

Torres-Flores, 502 F.3d at 889–91.
UNITED STATES V. BERNARDO 9

B

We now consider whether the district court erred in

applying § 2L1.1(b)(6) to the facts of this case.

The district court found that transporting a person by

strapping her inside a dashboard was neither safe nor

comfortable but rather “extremelyprecarious” and dangerous,

and we cannot say that those factual findings were clearly

erroneous given the evidence in the record. We disagree with

Bernardo’s argument that the district court erred because

(among other reasons) it did not consider that the strap

holding up the alien had a seatbelt-type lever that would have

allowed the alien to release herself without using a knife, the

dashboard area was large without sharp metal or jagged

edges, and the compartment was not airtight. While these

observations indicate that the dashboard compartment did not

raise certain specific dangers (such as the risk of being

suffocated or cut), it does not undermine any of the district

court’s findings regarding the risks of transporting a person

in the dashboard of a vehicle. See United States v. Cuyler,

298 F.3d 387, 390 (5th Cir. 2002).

We next turn to whether this conduct met the criteria of

Application Note 5, which indicates that § 2L1.1(b)(6)

applies to a “wide variety of conduct,” including but not

limited to the listed examples. Accordingly, we consider

whether the offense conduct at issue is analogous to the type

of reckless conduct listed in Note 5. Based on the evidence

in this case, it is reasonable to conclude that stashing a person

in a dashboard compartment is analogous to “transporting

persons in the trunk or engine compartment of a motor

vehicle.” U.S.S.G. § 2L1.1 cmt. n.5. The dashboard of a

vehicle, like a trunk or engine compartment, is not meant to
10 UNITED STATES V. BERNARDO

hold a human body. A person strapped inside a dashboard,

like a person in a locked trunk or engine compartment, cannot

easily escape from the enclosure to enter the passenger

compartment of the vehicle. By contrast, a person hidden

under a hatchback or in a compartment behind the back seat

remains within the portion of a vehicle intended for

passengers and can readily escape from the lightweight cover

used for concealment. See Dixon, 201 F.3d at 1233; compare

Cuyler, 298 F.3d at 390 (applying § 2L1.1(b)(6) where the

defendant transported four illegal aliens in the bed of his

pickup truck), with United States v. Solis-Garcia, 420 F.3d

511, 516 (5th Cir. 2005) (reversing the district court’s

application of § 2L1.1(b)(6) where the defendant transported

aliens in the cargo area of a minivan, which was inside the

passenger compartment of the vehicle). In addition, the

district court’s findings that placing a person in a dashboard

compartment is “extremely precarious” and unsafe supports

the conclusion that the conduct amounts to “harboring

persons” in a “dangerous, or inhumane condition,” as stated

in Note 5.

Bernardo argues that the district court erred in applying

an enhancement under § 2L1.1(b)(6) because even if the

district court correctly found that the offense conduct met the

criteria in Note 5, Torres-Flores requires the district court to

make the independent finding that the conduct “either

exacerbates the likelihood of an accident, subjects the

passenger to a risk of injury even during an accident-free ride,

or both.” 502 F.3d at 890. We disagree. Torres-Flores did

not formulate a new requirement for applying § 2L1.1(b)(6)

that supersedes or contradicts the Guidelines notes; rather, it

explained that the conduct listed in the Guidelines notes

shows the sorts of risks that meet the § 2L1.1(b)(6)

requirement. Id. at 890 (noting that “we accord ‘considerable
UNITED STATES V. BERNARDO 11

weight’ to the Guidelines’ application notes” and that these

notes identify risks that “substantially increase a concealed

passenger’s chances of injury or death over and above the

normal danger of vehicular travel”). As we explained in

Torres-Flores, the conduct at issue in that case, transporting

an alien covered by carpeting behind the back seat of an

extended-cab pickup truck, did not give rise to those sorts of

risks. By contrast, the offense conduct at issue in this case

gave rise to a substantially increased risk of injury or death

above the baseline risk of vehicular travel, as indicated by the

examples in Note 5.

Because the offense conduct here meets the criteria of

Note 5, we conclude that the district court did not err in

determining that the conduct created a substantial risk of

death or serious harm and therefore did not err in applying the

six-level enhancement to Bernardo’s base offense level.

AFFIRMED.