FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10627

Non-Argument Calendar

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D. C. Docket No. 07-10047-CR-KMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ABDULAY PEREZ, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

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(September 17, 2008)

Before MARCUS, WILSON and PRYOR Circuit Judges.

PER CURIAM:

Abdulay Perez, appeals his sentence of imprisonment of 27 months for
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conspiracy to smuggle illegal aliens into the United States, 8 U.S.C. §

1324(a)(1)(A)(v)(I). Perez contends that the district court erred when it enhanced

his sentence for the use of a dangerous weapon because it was not reasonably

foreseeable that his co-conspirator would throw a barrel of gasoline at the Coast

Guard. He also contends that the district court erred when it enhanced his

sentence for reckless endangerment during his flight. We affirm. 

I. DANGEROUS WEAPON ENHANCEMENT

“The district court’s interpretation of the sentencing guidelines is subject to

de novo review on appeal, while its factual findings must be accepted unless

clearly erroneous.” United States v. Jordi, 418 F.3d 1212 (11th Cir. 2005)

(quoting Untied States v. Pompey, 17 F.3d 351, 353 (11th Cir. 1994)). If a

dangerous weapon is “brandished or otherwise used” during the smuggling or

transportation of an illegal alien, the court should increase the defendant’s base

offense level by four, or to level 20, whichever is higher. U.S.S.G. §

2L1.1(b)(5)(B). When there is “jointly undertaken criminal activity. . . all

reasonably foreseeable acts of omissions of others in furtherance of the jointly

undertaken criminal activity, should be taken into account in calculating the

defendant’s appropriate sentence.” United States v. Pringle, 350 F.3d 1172, 

1175-76 (11th Cir. 2003) (quotation omitted). An act may be imputed from one
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participant in the criminal activity to another if the conduct was (1) “reasonably

foreseeable,” and (2) “in furtherance of the jointly undertaken criminal activity.”

United States v. Gallo, 195 F.3d 1278, 1281 (11th Cir. 1999); U.S.S.G. §

1B1.3(a)(1)(B). 

The government must prove “reasonable foreseeablility” by a

preponderance of the evidence. United States v. Cover, 199 F.3d 1270, 1274

(11th Cir 2000). The government need not prove that the defendant expressly

agreed to the acts of the other participants. Id. At 1275; see also U.S.S.G. § 1B1.3,

cmt. (n.2). Instead, “an act is reasonably foreseeable if it is a necessary or natural

consequence of the unlawful agreement.” Cover, 199 F.3d at 1275 (internal

punctuation and quotations omitted).

It was reasonably foreseeable that anything available as a potential weapon,

including a barrel of gasoline, would be used by Perez’s co-conspirator as they

were fleeing the Coast Guard. Perez’s argument that he must foresee the precise

weapon and manner in which it was used in unavailing. After the Coast Guard

began its pursuit of the go-fast vessel and the conspirators attempted to evade

capture, the use of any available object as a potential weapon was reasonably

foreseeable. The application of the enhancement was not clearly erroneous. 

II. RECKLESS ENDANGERMENT ENHANCEMENT
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Perez contends that the district court erred when it enhanced his sentence

for reckless endangerment during flight based on the conduct of his co-defendant. 

Because Perez failed to raise the argument in the district court, we review for plain

error. See United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). 

“Under plain error review, there must be (1) an error, (2) that is plain, (3) that

affects the defendant’s substantial rights, and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

“If the defendant recklessly created a substantial risk of death or serious

bodily injury to another person in the course of fleeing a law enforcement officer,”

the court may increase the offense level by two. U.S.S.G. § 3C1.2. A defendant is

responsible for his own conduct and for conduct that he “aided or abetted,

counseled, commanded, induced, or willfully caused.” Id. cmt. n.5. If a sentence

is enhanced for “aided or abetted” conduct, “some form of active participation by

the accused” in the reckless behavior is required. United States v. Cook, 181 F.3d

1232, 1235 (11th Cir. 1995).

Perez actively participated in the reckless behavior. The go-fast vessel lead

the Coast Guard on a high speed chase, was driven erratically to avoid capture,

and collided with the bow of the vessel driven by Coast Guard during the pursuit. 

Although Perez was not driving the go-fast vessel, Perez refueled the vessel during
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the chase and laid across the engines to prevent the Coast Guard from disabling

the vessel. The district court did not plainly err when it applied the enhancement

for reckless endangerment.

III. CONCLUSION

The sentence imposed by the district court is AFFIRMED.