FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 25, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 03-12040

 

D. C. Docket No. 02-20899 CR-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OMAR RODRIGUEZ-LOPEZ,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Florida

 

(March 25, 2004)

Before DUBINA, BARKETT and COX, Circuit Judges.

DUBINA, Circuit Judge:

Appellant Omar Rodriguez-Lopez (“Rodriguez-Lopez”) appeals his sentence

of 18 months imposed following his guilty plea for conspiracy and alien

smuggling, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(2)(A),
2

respectively. Rodriguez-Lopez contends that the district court erred by

misapplying USSG § 2L1.1(b)(5), which provides for a two-level enhancement

when a smuggling offense “involved intentionally or recklessly creating a

substantial risk of death or serious bodily injury to another person.” USSG §

2L1.1(b)(5). For the reasons that follow, we affirm.

I. BACKGROUND

A. Facts

On October 12, 2002, a United States Coast Guard aircraft spotted a speed

boat, or “go-fast” boat, traveling northbound from Cuba toward the Florida Keys. 

Several Coast Guard cutters converged on the area and began tracking the vessel

by radar. That evening, the Coast Guard deployed a team of officers on board a

27-foot “safe boat” to intercept the go-fast boat. The team first spotted the go-fast

boat around midnight. 

The Coast Guard team eventually maneuvered within 15 yards of the go-fast

boat, and, with blue lights illuminated, used a megaphone to identify themselves, in

both English and Spanish, and to instruct the people driving the boat to stop. The

go-fast boat refused to stop, however, compelling the Coast Guard vessel to engage

in a high-speed chase, at night, in three-to-four foot seas. During the chase, which

lasted for approximately 20 minutes, the go-fast boat maintained a speed of at least
3

30 knots. In addition, the go-fast boat repeatedly made sharp turns toward the

Coast Guard vessel, forcing the Coast Guard vessel to take evasive maneuvers to

avoid being hit. Eventually, three Customs Service boats also entered the chase. 

During the chase, Coast Guard and Customs officers observed a male

suspect at the helm of the boat, later identified as Delvis Garcia-Santos (“GarciaSantos”), Rodriguez-Lopez’s co-defendant. Rodriguez-Lopez was standing next to

Garcia-Santos and appeared to be directing the movements of the vessel. 

The officers also noted 22 passengers on the go-fast boat, including seven

children. Officers observed these passengers being violently tossed around and

bouncing into each other during the chase. Significantly, none of the people on the

boat were wearing life jackets.

Eventually, Customs officers used pepper spray, a chemical irritant, to

disable Garcia-Santos, causing him to take his hands off the wheel and throttles of

the go-fast boat. At that point, Rodriguez-Lopez took the helm of the go-fast boat. 

Customs officials then pepper sprayed Rodriguez-Lopez as well, and RodriguezLopez stopped the boat.

B. Procedural History
4

A federal grand jury in the Southern District of Florida returned a 23 count

indictment against Rodriguez-Lopez and Garcia-Santos. Count 1 alleged that, on

or about October 12, 2002, the defendants conspired to bring 22 aliens to the

United States, knowing and in reckless disregard of the fact that such aliens had

not received prior official authorization to come to, enter, and reside in the United

States. Counts 2 through 23 alleged the substantive alien smuggling offenses, each

count representing a different alien. Each count in the indictment constituted a

misdemeanor offense.

Garcia-Santos entered a guilty plea to Counts 1 through 3 of the indictment. 

After sentencing, he declined to take an appeal. Ultimately, Rodriguez-Lopez

entered a plea of guilty to Counts 1 through 3 based on the same factual proffer as

that of Garcia-Santos. The government agreed to dismiss the remaining counts of

the indictment and to recommend that Rodriguez-Lopez receive a full three-level

reduction for acceptance of responsibility as well as an additional three-level

reduction because the offense was committed other than for profit, pursuant to

USSG § 2L1.1(b)(1)(A).

Prior to sentencing, the United States Probation Office prepared a

Presentence Investigation Report (“PSI”), which recommended a base offense level

of 12, pursuant to USSG § 2L1.1(a)(2), the guideline for alien smuggling offenses;
5

a three-level reduction because the offense was not committed for profit, pursuant

to § 2L1.1(b)(1)(A); a three-level enhancement, pursuant to § 2L1.1(b)(5), because

the offense involved a substantial risk of death or serious bodily injury; and a

three-level reduction for acceptance of responsibility, pursuant to USSG § 3E1.1,

resulting in a total offense level of 15.

After a joint two-day sentencing hearing, the district court made findings of

fact and adopted the PSI’s recommendations, including an application of the §

2L1.1(b)(5) enhancement to both Rodriguez-Lopez and Garcia-Santos. With

respect to the applicability of the § 2L1.1(b)(5) enhancement, the district court

commented: 

The concern that I have is the chase. That is what concerns me is that

although there is no dispute that there were clearly marked vessels,

duly authorized with lights and loudspeakers going instructing to stop,

not only did they fail to stop, they kept at the same high rate of speed,

made veering actions that required others, the law enforcement to take

evasive actions. And it wasn’t once, it wasn’t twice, it was three

times. And it was only after the administering of the pepper spray,

which again endangered people and it had to be done twice because

when the original helmsman had to step back, the other defendant

stood up and took the helm and kept on going.

[R. Vol. 4 at pp. 110-11]. Additionally, the district court expressed concern that

the defendants engaged United States authorities in this chase with an insufficient
1

The district court commented:

 “[W]hat about the fact that you are traveling at 30 knots on this type of sea in the

dark with no one knowing where you are, you have 22 other human beings . . . and

they have no life preservers, particularly no life preservers for the children . . . . The

facts are . . . that there were several life preservers. Several usually means four or

five. There were seven children. There were 22 aliens all totaled.”

[R. Vol. 4 at pp. 133-34].

6

number of life jackets on board the vessel.1

 The district court then found that this

high-speed chase, conducted in choppy seas, with no one on board wearing a life

jacket, created a substantial risk of accident resulting in death. 

Notwithstanding the risk of death to their passengers that the defendants

created during the chase, the district court expressed concerns about applying the §

2.L1(b)(5) enhancement to Rodriguez-Lopez. The district court found that

Rodriguez-Lopez was just the navigator for most of the chase and took the helm of

the go-fast boat only briefly, and only after Garcia-Santos was pepper sprayed. 

Nonetheless, the district court concluded that the enhancement was applicable,

based on its finding that Rodriguez-Lopez assumed control of the go-fast boat and

continued the chase, even if only briefly, and did not stop the chase until after he

was pepper sprayed as well. 

The district court sentenced Rodriguez-Lopez to a term of 18 months

imprisonment, the lowest possible term of imprisonment within the applicable

guideline range: 12 months for Count 1, and 6 months each for Counts 2 and 3, to
2Relying on dicta in United States v. Williams, 340 F.3d 1231 (11th Cir. 2003), the dissent

contends that we should review the district court’s “detailed factual findings” de novo. See United

States v. Miranda, 348 F.3d 1322, 1330 n.8 (11th Cir. 2003) (concluding that, because the holding

of Williams concerned “the standard of review only for a challenge to the district court’s grouping

of a defendant’s offenses, . . . William’s remaining discussion is primarily dicta and, therefore, not

binding on this Court”). However, the dissent misreads this discussion in Williams, which concerns

only the appropriate “due deference” that we must accord a sentencing judge’s application of the

guidelines to the facts. Contrary to the dissent’s suggestion, Williams in no way contradicts our

uniform precedent, which “requir[es] us to review district courts’ factual findings under ‘clear error’

(or ‘clearly erroneous’) standard.” Williams, 340 F.3d at 1234. Moreover, in order to accept the

dissent’s position, we would have to ignore the clear and unambiguous directive of Congress that

we “shall accept the findings of fact of the district court unless they are clearly erroneous.” 18

U.S.C. § 3742(e) (emphasis added). We decline to do so.

7

run concurrently with each other and consecutive to Count 1. Rodriguez-Lopez

then perfected this appeal.

II. ISSUE

Whether the district court properly enhanced Rodriguez-Lopez’s sentence

under USSG § 2L1.1(b)(5). 

III. STANDARD OF REVIEW

With respect to sentencing guideline issues, this court reviews purely legal

questions de novo, a district court’s factual findings for clear error, and, in most

cases, a district court’s application of the guidelines to the facts with “due

deference.” United States v. White, 335 F.3d 1314, 1317 (11th Cir. 2003).2

 For a

factual finding to be “clearly erroneous,” this court, “after reviewing all of the

evidence, must be left with a definite and firm conviction that a mistake has been

committed.” United States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). 
8

IV. DISCUSSION

As an initial matter, we conclude that no merit exists in Rodriguez-Lopez’s

argument that the district court should have applied USSG § 3C1.2 instead of §

2L1.1(b)(5). The sentencing guideline’s general application principles instruct the

district court to apply the base offense level plus any specific offense

characteristics in chapter two before applying any chapter three adjustments. See

USSG § 1B1.1(b), (c). In addition, the commentary itself, which is binding,

indicates that § 3C1.2 should not apply if the court has enhanced a defendant’s

sentence under § 2L1.1(b)(5) “on the basis of conduct related to fleeing from a law

enforcement officer.” USSG § 2L1.1, comment. (n.6); see also Stinson v. United

States, 508 U.S. 36, 38; 113 S. Ct. 1913, 1915; 123 L. Ed. 2d 598 (1993) (holding

that a guideline’s application notes are binding unless inconsistent with the

Constitution, a federal statute, or the guideline itself). 

We further conclude that the district court did not clearly err in its

enhancement of Rodriguez-Lopez’s offense level pursuant to USSG § 2L1.1(b)(5),

based on its determination that Rodriguez-Lopez and Garcia-Santos created a

substantial risk of death or serious bodily injury to the 22 Cuban nationals that they

were transporting from Cuba to the United States. The record demonstrates that

the vessel sped through three-to-four foot seas at nighttime while the 22 aliens
3While the dissent contends that we “mis-frame [our] entire analysis by lumping the very

distinct actions of Garcia-Santos with those of Rodriguez-Lopez,” the district court found that both

Garcia-Santos and Rodriguez-Lopez took the helm of the go-fast boat during the chase. Although

the record is clear that Garcia-Santos operated the boat for a longer period of time, the § 2L1.1(b)(5)

enhancement contains no temporal limitation. The district court specifically found that both GarciaSantos and Rodriguez-Lopez participated in a dangerous high speed chase until both were subdued

by pepper spray. Thus, regardless of whether Garcia-Santos operated the boat for the majority of

the chase, both defendants were equally responsible for “recklessly creating a substantial risk of

death or serious bodily injury” to their human cargo.

9

aboard the vessel were not wearing life jackets, that insufficient life jackets were

available if needed, and that the drivers attempted on several occasions to ram or

shoulder pursuing vessels from the United States Coast Guard and Customs

Service, refusing to stop until after both Rodriguez-Lopez and Garcia-Santos were

exposed to pepper spray.3

Importantly, the applicable commentary to § 2L1.1(b)(5) of the sentencing

guidelines emphasizes that this provision applies to an array of factual scenarios

and should be applied flexibly:

Reckless conduct to which the adjustment from subsection (b)(5)

applies includes a wide variety of conduct (e.g., transporting persons

in the trunk or engine compartment of a motor vehicle, carrying

substantially more passengers than the rated capacity of a motor

vehicle or vessel, or harboring persons in a crowded, dangerous, or

inhumane condition).

USSG § 2L1.1, comment. (n.6). The district court’s findings and application of the

§ 2L1.1(b)(5) enhancement are clearly consistent with the commentary’s
4

See United States v. Lewis Romero-Larreinga, Nos. 02-14838 and 02-14841 (11th Cir. Feb.

24, 2003), and United States v. Cardet, No. 01-16987 (11th Cir. Dec. 16, 2002). While unpublished

opinions are not binding on this court, they may nonetheless be cited as persuasive authority. United

States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (citing 11th Cir. R. 36-2).

10

instruction to apply the enhancement broadly to circumstances where alien

smugglers subject others to “crowded, dangerous, or inhumane condition[s].” Id.

The application of the enhancement in this case is also consistent with the

existing case law upholding the application of the § 2L1.1(b)(5) enhancement. Our

circuit has addressed the enhancement in two unpublished opinions arising under

similar factual scenarios, and, in both instances, we affirmed the district court’s

application of the enhancement.4 Our sister circuits have also upheld the

application of the enhancement in situations analogous to circumstances of this

case. For example, other courts have consistently applied the enhancement to alien

smugglers who transport aliens on roadways without sufficient seats or seat belts. 

See, e.g., United States v. Cuyler, 298 F.3d 387, 391 (5th Cir. 2002) (“Aliens who

are unrestrained easily can be thrown from the bed of the pickup in the event of an

accident or other driving maneuver of the sort that is unavoidable in highway

driving.”); United States v. Ramirez-Martinez, 273 F.3d 903, 916 (9th Cir. 2001)

(holding that application of the enhancement was appropriate where the defendant

transported 20 people in a van without seats or seat belts); United States v. Angwin,

271 F.3d 786, 808-09 (9th Cir. 2001) (affirming application of the enhancement
11

where aliens were transported in a crowded motor home and were not seated or

wearing seat belts); United States v. Ortiz, 242 F.3d 1078, 1078-79 (8th Cir. 2001)

(affirming application of the enhancement when the defendant transported 23

aliens in a van equipped with seat belts for only 14). We find no material

distinction between smugglers who transport aliens in motor vehicles without

providing them with adequate safety measures, and the present case where 

Rodriguez-Lopez and Garcia-Santos operated a boat in a hazardous manner while

transporting aliens who were not wearing life jackets.

In sum, the record demonstrates that the district court did not clearly err in

finding that Rodriguez-Lopez’s participation in the high speed chase created a

substantial risk of death or serious bodily injury to the aliens that he was

transporting. Because we conclude that the district court properly applied the §

2L1.1(b)(5) enhancement, we affirm Rodriguez-Lopez’s sentence. 

AFFIRMED.
1Although the majority notices in its “Procedural History” section that Rodriguez-Lopez

“took the helm of the go-fast boat only briefly,” Dubina Opinion at 6, this fact is totally ignored by

the majority in its legal analysis. See Dubina Opinion at 8 (“The record demonstrates that the vessel

sped through three-to-four foot seas at nighttime while the 22 aliens aboard the vessel were not

wearing life jackets, and that the drivers attempted on several occasions to ram or shoulder pursuing

vessels from the United States Coast Guard and Customs Service, refusing to stop until after both

Rodriguez-Lopez and Garcia-Santos were exposed to pepper spray.”); Id. at 10 (“We find no

material distinction between smugglers who transport aliens in motor vehicles without providing

them with adequate safety measures, and the present case where the Rodriguez-Lopez and GarciaSantos operated a boat in a hazardous manner while transporting aliens who were not wearing life

jackets.”).

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BARKETT, Circuit Judge, dissenting:

I respectfully dissent. Although I believe the majority applies the wrong

standard of review, this case warrants reversal even under a clear error standard.

The majority’s basic legal analysis is uncontroversial–I do not disagree that

engaging in a high speed chase lasting nearly twenty minutes on high seas in the

middle of the night on a crowded boat that has few life preservers and attempting

to ram a Coast Guard boat would warrant a reckless endangerment enhancement. 

My objection is that this set of facts has almost no applicability to RodriguezLopez. According to both the record and the district court’s factual findings, the

driver of the boat during virtually the entire chase was not Rodriguez-Lopez, but

his co-defendant Garcia-Santos. Thus, the majority mis-frames its entire analysis

by lumping the very distinct actions of Garcia-Santos with those of RodriguezLopez.1

 The only question before us is whether Rodriguez-Lopez’s sentence

should be substantially enhanced for “recklessly creating a substantial risk of death
2

The district concluded that Rodriguez-Lopez was at the helm for only “moments.” At oral

argument, both counsel agreed that the “spirit of the testimony” was that Rodriguez-Lopez was at

the helm for only “a matter of seconds or a minute.”

3

It is well-established that “[i]n Sentencing Guidelines cases, we review the district court's

application of the Sentencing Guidelines de novo and its factual findings for clear error.” United

States v. Hall, 312 F.3d 1250, 1261 (11th Cir. 2002)(emphasis added)(internal citations and

punctuation omitted). The majority fails to differentiate between the district court’s factual findings

of the events in question and the district court’s separate determination that U.S.S.G. § 2L1.1(b)(5)

applies, thus deviating from “our usual practice [of] examin[ing] the district court’s application of

the law to the facts separately.” Williams, 340 F.3d at 1243. This is not a case where the “question

of the applicability of a guideline . . . practically answers itself.” Id. at 1242.

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or serious bodily injury” because he took control of a driverless speeding boat for a

matter of seconds2 and safely ending the chase by shutting the boat down. 

First, I believe that because the pertinent facts can “clearly be set forth in

detailed, non-conclusory findings by the district court,” de novo review is

appropriate. See United States v. Williams, 340 F.3d 1231, 1241 (11th Cir. 2003).3

In this case, the district court clearly set forth detailed factual findings and then,

after entertaining debate about the legal effect of the factual findings, finally

determined that U.S.S.G. 2L1.1(b)(5) enhancement did apply, stating that “if I am

wrong the Court of Appeals will let me know.” This court therefore should review

the factual findings of the district court for clear error, and review de novo the

district court’s interpretation of the legal application of 2L1.1(b)(5) to those facts. 

In my judgment, the district court’s factual findings, without more, do not

constitute a sufficient basis for applying U.S.S.G. § 2L1.1(b)(5)’s enhancement to
4

The government has not argued below that the dangerous actions taken by Garcia-Santos

should be imputed to Rodriguez-Lopez and the district court never attempted to do so. Nor does this

record contain facts that indicate that such action would be appropriate.

5

Testimony of Ernest Ramos, Petit Officer of United States Coast Guard, R4:21.

14

Rodriguez-Lopez. Rodriguez-Lopez’s co-defendant Garcia-Santos was

responsible for the dangerous chase. In the words of the district court, RodriguezLopez’s role was “much more minor.”4

 According to the district court, “the only”

facts that could support an application of the enhancement to Rodriguez-Lopez are

the facts that during a high speed chase, “he did take the helm, he did not stop the

boat immediately; it was only after he was also pepper sprayed that he brought the

boat to a standstill.” R4:155. The only eye-witness that testified explained that

these events occurred almost simultaneously:

After [Garcia-Santos] was pepper sprayed, he just took his hands off

the wheel and the throttles, and that is when the second operator

[Rodriguez-Lopez] took control of the boat, and then [Garcia-Santos]

moved to the stern of the boat . . . And then again that operator

[Rodriguez-Lopez] made a turn towards the Customs vessel and he in

turn got pepper sprayed, and after he got sprayed he just brought the

boat down and came what we call “dead in the water.”5

Furthermore, the district court specifically declined to make a finding that

Rodriguez-Lopez had attempted to ram the Coast Guard vessel. 

The de minimus evidence here simply does not support a finding by a

preponderance of the evidence that Rodriguez-Lopez “recklessly creat[ed] a

substantial risk of death or serious bodily injury to another person.” Indeed, the
6Rodriguez-Lopez pled guilty to three misdemeanor alien smuggling counts in violation of

8 U.S.C. § 1324(a)(2)(A) and 18 U.S.C. § 371.

7

The reckless endangerment enhancement resulted in a six-level increase in RodriguezLopez’s offense level from 12 to 18, and, after a three-level adjustment for acceptance of

responsibility, his offense level was 15. Because he has a Criminal History Category of I, the

applicable sentencing guideline range was 18 to 24 months in prison. Without the enhancement for

reckless endangerment his offense level would have been 9, with an applicable guideline range of

4-10 months imprisonment, or in lieu of imprisonment, a term of probation that includes a condition

of home detention or community confinement. See U.S.S.G.§ 5C1.1 (c)(3). 

15

facts make clear that in the brief moments he was at the helm, Rodriguez-Lopez

safely brought the dangerous chase to an end. 

Even if we view the evidence in the light most favorable to the government,

the factual record does not provide enough clarity regarding Rodriguez-Lopez’s

actions in those brief moments to warrant such a dramatic increase in his sentence. 

In this case, the bite from the sentencing enhancement has proven to be far more

venomous than the base sentence. Rodriguez-Lopez’s crime, to which he plead

guilty, was a misdemeanor attempt to reunite his family by traveling to Cuba with

his co-defendant to bring his wife, daughter and some friends to the United States.6

Given Rodriguez-Lopez’s cooperation with authorities, he would be eligible for

probation in combination with home or community detention if it were not for the

application of the sentencing enhancement now on appeal.7 That enhancement

requires Rodriguez-Lopez to serve at least an eighteen-month sentence. Because I
16

do not believe the record supports the application of such a drastic enhancement, I 

respectfully dissent.