F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

J O S E P H A

N T H O N Y B E R N A R D O , D efendant-Appellant. No. 15-50289

D.C. No. 3 :15-cr-00614-B EN-1

OPI NI ON

A ppeal from the United States District Court for the Southern District of California Rog er T. B enitez , District J u dg e, Presiding

Arg ued and Submitted March 7, 2016—Pasadena, California

F iled April 13, 2016

B efore: Richard R. Clifton and Sandra S. I kuta, Circuit J udg es and F rederic B lock, * Senior District J udg e.

Opinion by J udg e I k

uta

* T h e Ho n o rab le F r e d e r i c B l o ck
, Sen io r District J u d g e f o r th e U .S. District C o u rt f

o r th e Eastern District o f New Yo rk
, sittin g b y d esig n atio n

.U N I T E D S T A T E S V

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SUMMARY * *

Crim inal Law

Affirming a sentence for bring ing an unlawful alien into the United States and aiding and abetting
, the p anel h e ld that the district c o urt did n ot err in determining that transporting

a person by strapping her inside a compartment behind a vehicle d ashboard c r e ated a substantial risk of death o r serious h arm, and therefore did not err in apply ing a six -level enhancement pursuant to U.S.S.G. § 2L 1.1(b)(6).

COUNSEL

Gran t L

. Eddy ( arg ued), Chula Vista, California, for Defendant-Appellant.

L aura E

. Duffy
, United States Attorney
, Peter Ko, Assi stant United States Attorney
, L awrence E. Spong (arg ued), Assistant United States Attorney , for Plaintiff-Appellee.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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OP INION

I KUTA, Circuit J udg e:

J oseph B ernardo appeals t he district court’s application o f

a six -poin t u p w a rd adjustment to his offense level for “recklessly creatin g a substantial r isk of d eath or serious bodily injury to another person.” U.S.S.G. § 2L 1. 1 (b ) ( 6). W e have jurisdiction under 28 U .S.C. § 1 291, and w e affirm.

I

On F ebruary 15, 2015, w hile B ernardo was waiting in line
at the San Ysidro Port of Entry
, a dog alert ed t o h i s F ord W indstar van. A n o fficer c o n d u c ted an inspection of the vehicle and found a woman hidden in a compartment behind the dashboard. A heavy -duty c argo strap around the midsection of the woman’s body strapped her in and held her up i n the compartment. After the officer cut the strap w i t h h i s knife, the w oman climbed out of the compartment. She appeared alert and unharmed. Upon questioning
, she told the officer that she was a citiz en of Me x i co and that B ernardo had ag reed to smug g le her into the United States illeg ally

.

The g overnment c harg e d B ernardo with brin ging an unlawful alien into the United States in violation of 8 U .S.C. § 1324(a)(2)(B )(iii) and ai d i n g and abetting an offense
aga i n s t t h e United States in violation of 18 U.S.C. § 2. He pleaded g uilty to both charg es without a plea ag reement.

According to the presentence investig ation report ( PSR), B ernardo’s violation of 8 U.S.C. § 1 324 had a base offense level of 12. U.S.S.G. § 2L 1.1(a)(3). The PSR recommended that the offense level be increased to 18 under § 2L 1.1(b)(6)U N I T E D S T A T E S V

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of the Guidelines, which requires such an increase if “the offense invo l v ed intentionally o r recklessly creating a substantial risk of death or serious bodily i n jury to another person.” According to t h e PSR, the manner in which the

wom a n h a d been smug g led into the United States was “an inhumane manner in which t o t r ansport a person in an area not meant for human transport and created a substantial risk of death or s e r i o u s bodily injury .” The PSR also recommended a two-level reduction for acceptance o f responsibility under § 3E1.1(a). The resulting total of f e nse level of 1 6 c orresponded to a Guidelines rang e o f 3 3 t o 41 months, but the PSR r ecommended a lower sentence of 24 months and a three-y

ear period of supervised release.

B e rnard o filed objections to the PSR’s proposed enhancement under § 2L 1.1(b)(6). He arg ued that the heavy

duty carg o strap holding the alien “was used to prevent injury should a n a ccident occur,” that the “alien was not uncomfortable,” and that she was able t o climb out of the compartment using her own streng th.

The district court held a sentencing hearing on J u ne 15, 2015, noting that it h a d r e viewed the PSR’s sentencing recommendation and the parties’ arg uments. At the hearing
, B ernardo’s counsel conceded that strapping the woman in the dashboard compartment was “ex tremely serious” and ag reed that it constituted “pretty e g reg ious c o nduct,” but he arg u e d that the PSR’s proposed enhancement of the offense level to 18 was improper b e c a u s e transporting an alien in the dashboard compar t m e nt neither increased the risk of an accident nor substantially increased the alien’s chance o f serious b odily injury o r death. The district c ourt rejected this
arg ument, concluding that being strapped inside a dashboard

was “an ex tremely precarious position to put an individual in”U N I T E D S T A T E S V

. B E R N A R D O 5

and raised a “substantial r isk situation.” According ly
, the district court imposed the enhancement.

The d istrict court subsequently g ranted the g overnment’s motion to decrease the offense level by two levels in lig ht o f B ernardo’s substantial assistance, see U.S.S.G. § 5K1.1, resulting in an adjusted offense level of 13 with a Guidelines
rang e of 24–30 months. At a sidebar during the se n t e n c i ng heari n g , the g overnment moved for a further d ownward variance. I n consideration o f the relevant factors under 18 U .S.C. § 3553, the district court imposed a 16-month sentence, along with a three-y ear period o f supervised release.

I I

On a ppeal, B ernardo arg ues that the district court erred in apply ing the six -point upward a djustment for “intentionally

o r r ec k lessly creating a substantial risk of death or serious bodily injury to another person” under § 2L 1.1(b)(6).

W e review the district court’s factual finding s for clear

error and its interpretation of t h e S e ntencing Guidelines de

novo. United States v. Smith , 719 F .3d 1120, 1123 (9th Cir. 2013). There is a long stan d ing intracircuit conflict as to whether w e review the district court’s appli c a t i o n of the
g uidelines to the facts de novo or for abuse of discretion, United S tates v. S u l livan
, 797 F .3d 623, 641 n.13 ( 9th Cir. 2015), but because we would reach the same conclusion here under e ither standard, we n eed n ot call this case e n banc to resolve the conflict.

“Even thoug h the Guide lines are a dvisory
, they are still the ‘starting point and the initial b e n c h m ark’ for the

s e n tencing process.” United States v. Ellis
, 641 F .3d 4 1 1
,U N I T E D S T A T E S V

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415 ( 9th Cir. 2011) (quoting Kimbrough v. United States
, 552 U.S. 85, 108 ( 2007)). Therefore, w e “must first ensure that the district court committ e d no sig nificant procedural error, such as f

ailing to calculate (or improperly calculating ) the G uidelines rang e.” Gall v. United S tates , 552 U.S. 38, 51 ( 2 0 0 7 )

. W e interpret the Guidelines a s we would binding federal reg ulations and interpret the c ommentary in the Guidelines like “ a

n ag ency ’s interpretation of its o wn leg islative r u l e s .” Stinson v. United States
, 508 U.S. 36, 44–45 ( 1993). Thus, the “commentary i n the Guidelines Manual that interprets or ex plains a g uideline is authoritative unless it

. . . is inc o n sistent with, or a plainly erroneous reading of, that g uideline.” 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 ( 9 th Cir. 2012).

A

The Guidelines section applicable to B ernardo’s offense of conviction, § 2L 1.1, specifies the b ase offense level a nd enhancements for offenses involv i n g s m u g g l i n g , t r a n s p o r t ing
, or harboring an unlawful alien

. Section 2L 1.1(b)(6) o f the Guidelines provides: “I f the offense involved intentionally o r recklessly creating a substantial r i s k 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 o f

fense qualifies for such an enhancement if it meets the criteria set forth in N ote 5 o f the Application Notes to the Guidelines, which states, in pertinent part:

Reckless conduct to w h ich the adjustment from subsection (b)(6) a

p p lies includes a w ide variety of conduct (e. g. , transporting personsU N I T E D S T A T E S V

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in the trunk or eng ine compartment of a motor

v e h i c l e ; c a r r y i n g s u b s t a n t i a l l y m o r e passeng ers than the rated c apacity of a motor vehicle or vessel ; harboring p ersons in a

cro w d ed, dang erous, or inhumane condition;

or g uiding persons throug h, or abandoning
persons in, a d ang erous or remote g eog raphic

area without adequate food, w ater, c l othing
, or protection from the elements).

U.S.S.G. § 2L 1.1 cmt. n.5. B ecause the Application Note is
not inconsistent with or a plainly erroneous reading o f § 2L 1.1(b)(6), we defer to its reasoning

. Stinson
, 5 08 U.S. at 38. F or instance, we have held that the tra n s p o rt a t ion o f aliens in overcrowded vehicles, where the aliens lacked seats

or seatbelts, meets the criteria of “carry ing substantially

more passeng ers than the r ated capacity of a motor vehicle [ or] harboring persons in a crowded, dang erous, or inhumane condition,” w hich is sufficient to create a substantial risk o f death or serious bodily injury

. Unite d S t a t es v. RamirezMartinez
, 273 F

. 3 d 903, 916 (9th C ir. 2001) (quoting U.S.S.G. § 2L 1.1 cmt. n.5), overruled on o ther grounds by United S tates v. Lopez
, 484 F .3d 11 8 6 (9th Cir. 2 0 07); see also United States v. Hernandez-Guardado
, 228 F .3d 101 7
, 1027–28 (9th Cir. 2000).

W e have noted that there is a baseline risk inherent in all vehicular t r a v e l
, and we “ focus on the way s in which the method of transporting the alien increased the risk o f death o r injury bey ond that faced by a normal passeng e r.” United States v

. Torres-Flores
, 502 F .3d 885, 889 (9th Cir. 2007). T he ex amples provided in Application Note 5 represe n t t h e “kinds of risks [ that] substantially increase a concealed
p a s seng er’s chances of injury or death over and above t h eU N I T E D S T A T E S V

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normal dang er of vehicular travel.” Id. at 890. A c cording ly
, offense cond u c t m ay meet the c riteria o f § 2L 1.1(b)(6) if it involve s s i m i lar ty

pes of risks. Id. F or instance, offense conduct that involves transportation over a more d ang e r ous route, a dang erous manner of driving
, an unsafe vehic l e, insufficie n t ventilation, a risk of injury from moving mechanical parts, o r an increased r isk “that a n accident, if it should o ccur, wo uld cause injury or death (e.g
., passeng ers transported in a manner that m akes them more likely to be injured by crumpled metal or shattered g lass than if they h ad been seated nor m ally

) ,” may meet the criteria o f § 2L 1.1(b)(6). Id. ; see also United States v. Miguel
, 368 F .3d 1150, 1155–5 6 (9th Cir. 2004); United States v. GarciaGuerrero
, 313 F

. 3d 892, 896–97 (5th Cir. 2002). B y contrast, transporting aliens in the h atchback area of a vehicle, without
more, does n ot g ive rise to a “substantial r isk of death o r serious bodily injury ” because unlik e b eing locked in the trunk of a car, an alien “easily could ex tricate himself” from

a hiding place under a hatchback cover. U nited States v

. Dixon
, 201 F .3d 1223, 1233–34 (9th Cir. 2000); s ee a lso Miguel
, 368 F .3d at 1155 ( disting uishing a closed trunk from

a trunk with the back seat pushed down such that it w a s open to the main cabin of the car). Similarly
, transporting an alien covered by carpeting behind the b ack seat of a n e x tended-cab pickup truck did n o t i n v o lve “a substantial risk o f death o r serious bodily injury ” because transportation in a v e hicle that “had been modified to c reate additional space for a passeng er to hide behind the back seat,” created an incrementa l r isk to the alien “only in the hig hly unlikely e v ent o f an accident.” Torres-Flores , 502 F .3d at 889–91.U N I T E D S T A T E S V

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B

W e n ow consider whe ther the district court erred in apply ing § 2L 1.1(b)(6) to the facts of this case.

The distri c t court found that transporting a person b y

s t r apping her inside a dashboard w as neither safe n o r comfortable but r ather “ex tremely precario u s ” a n d d a n g erous, and we c annot say that those factual f inding s were clearly

erroneous g iven the evidence in the record. W e disag ree with B ernardo’s arg ument that the district court erred because (among other reaso n s) it did not consider that the strap holding up the alien had a seatbelt-ty pe lever that would have allowed the alien to release herself w ithout using a knife, the dashboard area was l ar ge w ithout sharp metal or jag g ed edg es, and the compartment was not a i r tig ht. W hile these observations indicate that the dashboard compartment did not raise certain specific dang e rs (such as t h e risk of being suffocated or cut), it does not undermine any of the d i s t rict court’s finding s reg arding the risks of transpo r t i n g a person in the dashboard of a vehicle. See Un i t e d States v. Cuyler
, 298 F .3d 387, 390 (5th Cir. 2002).

W e nex t turn to whether this conduct met the criteria o f Application Note 5, which indicates that § 2L 1.1(b)(6) applies to a “wide variety of c onduct,” inclu d i n g b ut not limited to the listed ex amples. A ccording ly
, w e consider whether the offense conduct at issue is analog ous to the ty pe of reckless conduct listed in Note 5. B ased on the evidence in this case, it is reasonable to conclude that stashing a person in a dashboard c ompartment is analog ous to “transporting
persons in t h e trunk or e n g ine compartment of a motor vehicle.” U.S.S.G. § 2 L 1.1 cmt. n.5. The dashboard o f a vehicle, like a trunk or eng ine c o m p artment, is not meant toU N I T E D S T A T E S V

. B E R N A R D O 10

hold a human body

. A person strapped inside a dashboard, like a p erson in a locked trunk or eng ine c ompartment, cannot easily escape from the enclosure to e nter the passeng er compartment of the vehi c l e

. B y contrast, a person hidden under a hatchback or in a compartment behind the b ack seat remains within the porti o n o f a vehicle intended for
passeng ers and can readily e scape from the lig htweig ht cover used for concealment. S

ee Dixon
, 201 F

. 3d at 1233; compare Cuyler
, 298 F .3d at 390 (app l y ing § 2L 1.1(b)(6) w here the defendant t r a n s ported four illeg al aliens in the bed of his pickup t ru c k ), with United States v. Solis-Garcia
, 420 F .3d 511, 516 (5th Cir. 2005) (reversing the district court’s application of § 2 L 1.1(b)(6) w here the defendant transported aliens in the carg o area of a minivan, which was inside t he
passeng er compartment of th e v e h icle). I n addition, the district c ourt’s finding s that placing a person in a dashboard compartment is “ex tremely precarious ” and unsafe supports the conclusion that the conduct a mounts to “ h a rboring persons” in a “dang erous, o r inhumane cond i t ion,” as stated in Note 5.

B e rnardo arg ues that the district court e r r e d in a pply ing

an enhancement under § 2 L 1

. 1(b)(6) because e ven if the district c ourt c orrectly f

ound 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

ex a c erbates the likelihood o f an a ccident, subjects the
passeng er to a risk of injury even during a n accident-free ride,

or both.” 502 F .3d a t 890. W e disag ree. Torres-Flores did
not f ormulate a new requirem e n t f or apply ing § 2L 1.1(b)(6) that supersedes or contradicts the Guidelines notes; rather, it

ex p lained that the conduct listed in the Guidelines notes shows the sorts of risks that meet the § 2L 1.1(b)(6) requirement. Id. at 890 (noting that “ we accord ‘considerableU N I T E D S T A T E S V

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weig ht’ to the Guidelines’ application n otes” a nd that these
notes identify risks that “substantially increase a c oncealed
passeng er’s chances of i n j u r y or death over and above the normal dang e r of vehicular travel”). As we ex plai ned in Torres-Flores , the conduct at issue in that case, transporting

a n a l ien covered by carpeting behind the b ack seat o f an

ex tended-cab pickup truck, did not g ive rise to those sorts o f risks. B y contrast, the o f fense condu ct a t issue in this case g ave r ise to a substantially increased risk of injury or death above the baseline risk of vehicular travel, as indicated by the

ex a mples in Note 5.

B e cau se the offense conduct here meets the criteria o f Note 5, we conclude that the district court d i d not err in determining that the conduct created a subs t antial risk o f death or serious harm and therefore did not err in apply ing the six -level enhancement to B e rnardo’s base offense level.

AF F IRMED.