### FI LED U.S . COURT OF APPEALS ELEVENTH CI RCUIT March 25, 2004 THOMAS K. KAHN

CLERK [P UBLI SH] IN THE UNIT ED STATES COURT OF APPEALS FOR THE ELE VEN TH C IRCU IT

No. 03-12040

D. C. Doc ke t No. 02 -2 08 99 CR- PAS UNI TED S TATE S OF AME RI CA, Plainti ff-Appellee,

versus OMAR RODRIGUEZ-LOPEZ , De fend ant-A ppe llant.

Appeal from the United States Distri ct Court for the Southern Dist

rict of Flori da (March 25, 2004) Before D UB INA , BAR KE TT an d CO X, Circuit Judg es. DU BINA , Circuit

Judge: Appellant Omar Rodriguez-Lop ez (“Rodriguez-Lopez”) appeals his sentence of 18 months imposed following his guilty pl ea for conspiracy and alien smuggling, in violation of 18 U.S.C. § 371 and 8 U .S.C. § 1324(a)(2)(A),2

respec tive ly. Rodriguez- Lopez conte nds that the di stri ct cour

t err ed by misappl ying USSG § 2L1.1(b)(5), whic h provides for a t wo-levelenhancement when a smuggling of

fense “ involve d inte ntiona lly or reckl essl y creating a

subs t an t i alri sk

of de at h o r s er i ou s b od i l y inj ury t o ano t he r p er so n. ” US SG § 2L1. 1(b) (5) . For

the rea sons that f

oll ow, we a ffirm. I. BACKGRO UND A. Fac ts On O ctober 12, 2002, a United Stat es Coast Guard aircraft spotted a speed boa t, or “g o-fa st” bo at, trav eling nor thbo und from Cu ba to wa rd th e Flo rida K eys. Several Coast Guard cutters c onverged on the area and began tracking t he vessel by radar . That e vening, the Coast Guard deploye d a team of offic ers on boar d a 27-foot “safe bo at” to intercept the go-fast boat. The team first spotted the go -fast boa t arou nd m idnig ht. The C oast Guard team eventually mane uvered w ithin 15 yards of the go -fast boa t, and , with blue lights illum inated , used a me gap hon e to id entify them selve s, in both Engli sh and Spanis h, and t o inst ruct t he people drivi ng the boat to st op. The go-fast boat re fused t o stop, however, compel ling t he Coast Guard ve sselto engage in a high-speed chase, at night, in three-to-four foot seas. During the chase, which lasted for approx imately 20 minutes, the go-fast bo at maintained a speed o f at least3

30 knots. In addition, t

he go-fas t boat

repeat edly made sharp t urns toward t

he Co ast G uard vess el, for cing the C oast G uard vess el to tak e eva sive m aneu vers to

avo id be ing h it. Ev entu ally, thr ee C usto ms S ervic e bo ats also enter ed th e cha se.

Du ring the ch ase, C oast G uard and Cu stom s off icers o bser ved a ma le suspect at

the helm of the boat, later identif ied as Delvis Garcia -Santos (“GarciaSan tos”) , Ro drig uez- Lo pez’s co-d efen dan t. Ro drig uez- Lo pez w as stan ding nex t to Ga rcia-S anto s and app eare d to b e dire cting the m ove men ts of th e ves sel. The officers al so noted 22 passengers on the go-fast boat, incl

uding seven chil dren. Offi cers obs erved t hese pas sengers being vi olent ly t ossed ar ound and bouncing i nto eac h other during the chase. Signifi cantly, none of the peopl e on the boat were wearing life jackets. Ev entu ally, C usto ms o fficer s use d pe ppe r spr ay, a ch emic al irritan t, to disabl e Garcia -Santos, causi ng him to t ake his hands off t he wheel and t

hrott les of the g o-fa st bo at. A t that p oint, R odr igue z-L ope z too k the helm of th e go -fast b oat. Customs official s then pepper sprayed Rodriguez-Lopez as well, and RodriguezLo pez s topp ed th e bo at. B. Procedural History4

A federalgrand jur

y in t he Southern Dis tri ct of Fl orida r eturne d a 23 count indic tment a gainst

Rodriguez- Lopez and Garci a-Santos . Count 1 al leged t hat, on or about Oct ober 12, 2002, the def endants conspir ed to bring 22 ali ens to t he United States, knowing and in reckless disregard of t he fact t hat such ali ens had not received pri or officia l authoriz ation to come to, enter, and reside in t he United States. Counts 2 through 23 alleged the substantive ali en smuggling offenses, eac h count re presenting a di ffere nt al ien. Each count in the i ndict ment constituted a misdemeanor offense. Ga rcia-S anto s ente red a guilty plea to Co unts 1 thr oug h 3 o f the in dictm ent. After sentenci ng, he declined to take an appeal. Ultimatel y, Rodriguez-Lopez entered a ple a of guilty

to Counts 1 through 3 based on the same factual proff er as that of Garcia -Santos. The government a greed t o dismis s the r emaini ng counts of the indict

ment and to recommend that Rodriguez-Lopez receive a ful l three- level reduction for acc eptance of responsibilit y as well as an addi tional t hree-level redu ction beca use th e offense wa s com mitted othe r than for p rofit, p ursu ant to USS G § 2L 1.1(b)(1)(A). Prior t o sente ncing, the Unit ed Stat es Probat ion Offic e prepar ed a Presentence Invest igati on Report (“PSI”), which recommended a base offense level of 12, pursu ant to US SG § 2L1 .1(a)(2), the guideline for alien smu ggling offenses;5

a thre e-le vel re ducti on because the off ense was not

committ ed for prof

it, pursuant to § 2L1 .1(b)(1)(A ); a three-level enhancemen t, pursuant to § 2L 1.1(b)(5), becau se the off ense i nvolved a s ubstantialrisk of death or seri ous bodil y inj ury; a nd a three -leve l reduc tion f

or acce ptance of respons ibil ity , pursua nt to USSG § 3E1.1, resul ting in a tot al off

ense l evel of

15. After a j oint t

wo-day sent encing he aring, the di stri ct cour t made findings of fact and adopted t

he PSI’s recommendations, including an applicat ion of the § 2L 1.1( b)(5 ) enh ance men t to bo th R odr igue z-L ope z and Ga rcia-S anto s. W ith respect t o the applica

bilit y of the § 2L1.1(b)(5) enhancement, the di stric t court

com men ted: The concern that I have is the chase. That is what concerns me is t hat although there is no d ispute that there were clearly marked vessels, duly aut horize d with li ghts and l oudspeaker s going i nstruc ting to stop, not only did the y fai l to s top, t

hey kept at t he same hi gh rate of speed, made veering acti ons that requir ed other s, t

he law enfor cement to take evasive actions. And it wasn’t once, it wasn’t t wice, it was three times. And it w as only after the administering of the p epper spray, which ag ain endange red people an d it had to be don e twice because when the ori ginalhelmsman had to step ba ck, t he other defendant stood up and took the helm and kept on goi ng. [R. Vol. 4 at pp. 110-11]. Additi onally, the dist rict c ourt expressed concern t hat the def endants engaged Unit ed Stat es aut horities in this chase wit h an insuf

fici ent1 The district court commented:

“[W]hat about the fact that you are tra veling at 30 knots on t

hi s t yp e of sea in the dark with no one knowing where y ou are, you ha

ve 22 other human beings . . . and they have no life preservers, particular ly no life preser

vers for the children . . . . The factsare . . . that there were sever al life preserver s. Several usually mea ns four or five. There were seven childre n. There were 22 aliens all totaled.” [R. Vo l. 4 a

t pp. 1 33-3 4]. 6 num ber o f life jac kets o n bo ard th e ves sel. 1 Th e distr ict cou rt then fou nd th at this high-speed chase, c onducted in choppy seas, with no one on board wearing a life jacke t, create d a su bstan tial risk of ac ciden t resu lting in death

. No twith stand ing th e risk of d eath to their p assen gers that th e defend ants created duri ng the chase, t he distri ct court expres sed concerns about applyi ng the § 2.L1(b)(5) enhancement to Rodriguez-Lopez. The distri ct court found that Rodriguez- Lopez was just the navi gator f

or most of t

he chase and took t

he helm of the g o-fa st bo at on ly brie fly, an d on ly after Ga rcia-S anto s w as pe ppe r spr ayed

. Nonetheless, t

he distri ct court concluded that the enhancement was appli cable, based on i ts finding that Rodrigue z-Lopez as sumed contr ol of t he go-fas t boat

and conti nued the c hase, even if only bri efly , and di d not st op the cha se unti l aft er he

wa s pep per s pray ed as we ll. The dist rict court s entenc ed Rodriguez -Lopez to a term of 18 mont

hs imp rison men t, the lo we st po ssible term of im priso nm ent w ithin th e app licable guid eline r ang e: 12 mo nths for C oun t 1, an d 6 m onth s each for C oun ts 2 an d 3, to2 Rely ing on dic ta 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 “thestandard 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 bindingon this Court”). However, the dissent misreadsthis discussion in Williams , which concerns only the appropriate “due deference” that we must accord a sentencing judge’s application of the guidel ines to the facts. Contrary to the dissent’s suggestion, Williamsin no way contra dicts our uniformpreced

ent, which “r

equir[es] us to review district courts’ factual findings under ‘ clear error’ (or ‘clearly erroneous’) standard.” Wil lia ms , 340 F.3d at 1234. Moreover, in order to acce pt the dissent’s position, we would ha ve to ign ore the c lear an

d unambig

uous dire ctive of

Co ng ress that we “shall a ccept 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 ea ch other and consecuti ve to Count 1. Rodriguez-Lopez then perfected this ap peal. II. IS SUE Whether the distri ct court properly enhanced Rodriguez-Lopez’s sentence und er U SS G § 2L 1.1( b)(5 ). III. STANDAR D OF REVIEW With respect to se ntencing guideline issues, this court reviews purely le gal questions de novo , a district court’s fact ual findings for clear error, and , in most

cases , a di stri ct cour

t’s appli cati on of the gui deli nes to t he fact s with “ due deference.” Un ited S tates v . Wh ite , 335 F.3d 1314, 1317 (11th C ir. 2003). 2 For a fact ual finding to be “cl earl y errone ous,” t his cour t, “ afte r revi ewing allof the evidence, must be l eft with a defi nite and fi rm conviction that a mistake has been committed.” United States v. Foster , 155 F.3 d 13 29, 1 331 (11 th C ir. 19 98)

.8 IV. DISCUS SION As a n initial matter, w e conc lude tha t no m erit exists in R odrig uez-L opez’s argument that t

he distri ct court should have appl ied USSG § 3C1.2 instead of § 2L1.1(b)(5) . The sent encing gui deli ne’s ge neralappli cati on principles instruc t the district court to apply the base offense level plus any sp ecific offense char acteris tics in c hap ter tw o be fore app lying any c hap ter thr ee ad justm ents. See USSG § 1B1.1(b), (c). In addition, t he commentar

y it self , which i s bindi ng, indicates th at § 3C 1.2 sh ould n ot app ly if the cou rt has en hance d a defendan t’s sentence under § 2L1.1(b)(5) “on the basi s of conduct relat ed to fleeing from a law enfo rcem ent o fficer .” U SS G § 2L 1.1, c om men t. (n.6 ); see also Stinson v. United States , 508 U.S. 36, 38; 113 S. Ct. 1913, 1915; 123 L. Ed. 2d 598 (1993) (hol ding that a guidel ine’ s appli cati on notes a re binding unless inconsi stent with the Co nstitu tion, a fede ral statu te, or th e gu idelin e itself)

. W e fur ther c onc lude that th e distr ict cou rt did not c learly e rr in its enhancement of Rodriguez-Lopez’s offense levelpursuant to USSG § 2L1.1(b)(5), based on i ts det ermination that Rodrigue z-Lopez and Garc ia-Santos created a substanti al ris k of death or serious bodily injury t o the 22 Cuban nationals that they were transporting from Cuba to the United Stat es. The record demonstrates that the ves sel s ped through t hree-to-four foot

seas at night

time whil e the 22 a lie ns3 Whilethe dissent contends that we “mis-frame [our] entire analy sis by lum

ping the very distinctactions of Garcia-Santos with those of Rodriguez-Lopez,” the district court found tha t both Garcia-Santos and Ro drigue z-Lopez took the he lm of t he go-fa st bo at dur ing th e chase . Alt hough 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 specificallyfound that both GarciaSantos and Rodriguez-Lopez participate d in a dangerous high speed chase until both weresubdued by pepper spray . Thus , rega rdless of whether Garcia-Santos operate d the boat for the majority of the chase, b oth defe

ndants we

re equa lly r esponsibl e for “r

eckless ly c

reating a substantial risk of death or serious bodily injury ” to their human cargo.

9 aboard the vesselwere not wearing life j ackets, that i nsufficie nt lif e jacket s were avail able i f needed, and that the drivers at

tempte d on severa l occa sions to ram or shou lde r pur sui ng ve sse ls fro m the Unit ed St at es Co ast Guard and Cu st oms Service, ref

using to stop unti l afte r both Rodriguez-Lopez and G arcia-Santos were exposed to p epper spray. 3 Importantly, the appl icabl e commentar y to § 2L1.1(b)(5) of t

he sent encing guidel ines e mphasize s that this provisi on appli es to a n array of fact ual sc enari os and shou ld be applied flexibly: Reckles s conduct

to which t

he adjus tment f

rom subsection (b)( 5) appli es inc ludes a

wide vari ety of

conduct ( e.g. , transport ing pers ons in the trunk or e ngine compar tment of a motor vehi cle, carry ing substa ntia lly more passe ngers t

han the r ated c apaci ty of a motor vehicl e or vess el, or harboring persons in a crowded, dangerous, or inhumane condition). USSG § 2L1.1, comment . (n. 6). The di stri ct cour t’s findi ngs and appl ication of t he § 2L 1.1(b )(5) en hance men t are clearly co nsistent w ith the com men tary’s4 SeeUnited States v. Lewis Romero-Larreinga , Nos. 02-14838 and 02-14841 (11th Cir. Feb.

24, 2003), and United States v. Cardet , No. 01-1 6987 (11th Cir. Dec . 16, 2002) . Whileunpublished opinions are not b inding 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 t

he enhancement broadly to ci rcumstances where ali en smugglers subject ot

hers to “cr owded, dangerous, or inhumane condition[s]. ” Id. The appli cati on of the e nhancement in thi s case is al so consi stent with the existing cas e law upholding the appl ication of t he § 2L1.1(b)( 5) enhance ment. Our circuit has addressed the enhancement in two unpub lished opini ons arising under similar factu al scenar ios, and , in both instances , we affirmed the district co urt’s app lication of th e enh ance men t. 4 Our sist er ci rcuit s have al so upheld t he app lication of th e enh ance men t in situ ation s ana logo us to circu msta nces of th is case. For example, ot

her courts have consis tentl y applied t he enhancement to ali en

smu ggle rs w ho tr ansp ort alie ns o n ro adw ays w ithou t suff icient s eats o r seat b elts. See, e .g. , United States v. Cuyler , 298 F.3d 387, 391 (5th Cir . 2002) (“ Aliens who are unrestra ined easily can be thrown from the bed of the pickup in the event of a n accident or ot

her driving maneuver of the sort that i s unavoidable in highway driv ing.” ); United States v. Ram irez-Martinez , 273 F.3d 903, 916 (9th Cir . 2001) (holdi ng that

appli cati on of the e nhancement was appropri ate where the def endant trans por ted 2 0 pe ople in a v an w ithou t seats o r seat b elts); Un ited S tates v . An gw in , 271 F.3d 786, 808-09 ( 9th Cir. 2001) (aff irming a pplic ati on of the e nhancement11

where ali ens were t

ransport ed in a c rowded motor home and were not seat ed or wearing seat belt s); Un ited S tates v . Or tiz , 242 F.3d 1078, 1078-79 (8th Ci r. 2001) (affirming appl ication of t he enhance ment when the de fendant trans ported 23 aliens in a van equipped with seat belt s for only 14). We find no material dist inct ion bet

ween smugglers who transport ali ens in mot or vehic les wit hout providing them with adequate safe ty measures, and the present ca se where Ro drig uez- Lo pez a nd G arcia- San tos o pera ted a b oat in a haz ardo us m ann er w hile transporting aliens wh o were n ot wearing life jackets. In su m, th e rec ord dem ons trates th at the d istrict co urt d id no t clearly err in findi ng that

Rodriguez- Lopez’s parti cipation in t he high spe ed chase creat ed a substanti al ris k of death or serious bodily injury t o the ali ens that he was transporting. Because we conclude that t he distri ct court properly applied t he § 2L 1.1( b)(5 ) enh ance men t, we affirm Ro drig uez- Lo pez’s sente nce. AFFI RMED.1 Alth ough the majority notices in its “Procedura l History” section that Rodrig ue z-Lope z “took the helm of the go-fast boat only

briefly,” D

ubina Opinion at 6, this fact is totally ignored by the majority

in its legal analysis. See Dubina Op inion at 8 (“The record demonstrates that the vessel sped through three-to-four

foot seas at nigh

ttime while

the 22 ali ens aboa

rd the ve sse l were not wearing life jackets, and

that the drivers attempted on several occasions to ram or shoulder pursuing vesselsfrom the United Sta tes Coast G

uard and Customs Ser

vice, re fusing t

o stop until

after b oth Rodriguez-Lopez

and Gar cia-Sa ntos w ere expos ed to pepp er spra y.”); Id. at 10 (“We find no materialdistinction between smug gle rs who transport aliens in motor vehicles without providing themwith adequate safety

measures, and the present case whe re the Rodriguez-Lopez and Garc iaSantos operated a boat

in a hazar

dous manne

r while transporting aliens who were not wear ing life jackets.”). 12 BARK ETT, Circuit

Judge, di ssent ing: I respe ctful ly di ssent . Although Ibeli eve the majori ty appl ies t he wrong standa rd of revi ew, thi s case warrants revers al eve n under a cl ear er ror st andard. The majority’s basic le gal analys is is uncontr oversial–I do not di sagree that engaging in a high spe ed chase lasting nearly t wenty minut es on high s eas i n the middle of

the ni ght on a cr owded boat that has f ew life preser

vers and atte mpting to ram a Co ast G uard boa t wo uld w arra nt a re ckles s end ang erm ent en han cem ent. M y ob jection is that th is set o f fac ts has almo st no applicabi lity to RodriguezLopez. According to both t he recor d and the di stri ct cour t’s fact ual findings, the driver of the boa t during virtually the entire chase was not Rodriguez- Lopez, but his co -defend ant G arcia- San tos. T hus , the m ajority mis- fram es its en tire an alysis 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 su bstantially enhanced for “recklessly creating a sub stantia l risk o f dea th2 The district c oncluded that Rodriguez-L

opez was a

t the helm for only “moments.” At or al argument, both counsel agreed that the “spirit of the testimony” was that Rodriguez-Lopez wasat the helm for only “a

matter of seconds or a minute.” 3 It is we ll-e stablished

that “ [i]n Sentenci ng Guidelines cases, we revi ew the dist rict c ourt's application

of the Sen

tencing Guideline s de novo and its factual findi ngs for c lear error.” United States v. Hall, 312 F.3d 1250, 1261 (11th Cir. 2002)(emphasis added)(internal citations and punctuationomitted). The major ity failsto di fferen tiat e betw een th e dist rict c ourt’ s fact ual fi ndin gs of the events in questionand the di strict co urt’s sep arate

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.
13 or serious bodily

injury” because he took control of a driverles s speeding boat for a matte r of sec onds 2 and safely end ing th e cha se by shu tting th e bo at do wn . Firs t, I belie ve th at bec ause the p ertine nt fac ts can “clear ly be s et for th in detail ed, non-conclusory fi ndings by the dist rict c ourt,” de novo revie w is app rop riate. See Unit ed St at es v . Wil li ams , 340 F.3d 1231, 1241 (11th C ir. 2003). 3 In thi s case , the dist

rict court c learly se t fort

h detai led fa ctualfindi ngs and the n, after e nterta ining deb ate ab out th e lega l effec t of th e fac tual fin ding s, fina lly determined that

U.S.S.G. 2L1 .1(b)(5) enhancement did apply , stating that “ if I am wrong the Cou rt of Appeals will l et me know.” This court therefore should re view t he fa ct ua l find i ng s o f t

he di st ri ct co urt fo r c l ear e rr or , an d r ev i ew de novo the distric t cou rt’s inte rpre tation of th e lega l app lication of 2 L1 .1(b )(5) to tho se fac ts . In my judgment , the dist rict court’ s fact

ual findings, without more , do not

con stitute a suff

icient b asis fo r app lying U.S .S.G . § 2L 1.1( b)(5 )’s en han cem ent to4 The government has not argued below that the dangerous actions taken by Ga rcia-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 ac tion would be appropriate. 5 Testimony of Ernest Ramos, Petit Office r of United States Coast Guard, R4:21. 14 Rodriguez-Lopez. Rodriguez-Lopez’s co-defendant Garcia-Santos was responsible for t

he dangerous chase. In the words of the dist rict c ourt, RodriguezLo pez’s role w as “m uch mo re m inor .” 4 Accord ing to the district court, “the only” facts t hat could support an appli cation of t he enhancement to Rodriguez-Lopez are the fa cts t

hat during a high spe ed chase , “he did take the he lm, he di d not st op the boat i mmediate ly; it was only aft er he was al so pepper s prayed t hat he br ought the boat to a st andstil l.” R4:155. The only eye- witness that testi fied explai ned that these events occurred almost simultaneously: After [Garcia-Santos] was pepper sprayed, he just t ook his hands off the wheeland the t

hrott les, and that

is when the second oper ator [Rodrigu ez-Lope z] took control of the bo at, and then [Ga rcia-Santos] moved to the ster

n of the boat . . . And then aga in that operator [Ro drig uez- Lo pez] m ade a turn tow ards the C usto ms v essel a nd h e in turn got pepper spr ayed, and aft er he got spraye d he just

brought t

he boa t dow n an d cam e w hat w e call “d ead in the w ater.” 5 Furthermore, the dist

rict c ourt specifi cally

declined t o make a finding that Ro drig uez- Lo pez h ad atte mp ted to ram the C oast G uard vess el. The de minimusevidence here sim ply does not sup port a finding by a prepo ndera nce of

the evid ence tha t Rod riguez- Lop ez “reckles sly creat[ed ] a substa ntia l ri sk of deat

h or seri ous bodil y inj ury to a nother pe rson.” Indeed, the6 Rodriguez-Lopez pled gu ilty to three misdemea

nor alie n smuggling cou

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

7 The reckle ss endangerment e nhance ment resu

lted in a si

x-level inc reas e in Ro driguezLopez’soffense

level fr om 1 2 to 18, and, after a three-level adjustment for a cceptance of responsi bilit y, his offe nse level was 15. Because he has a Criminal History Category of I , the applica blesente ncing gu ideli ne range was 18 to 24 months in prison. Without the enhancement for reckless endangerment

his offe nse leve l would

have been 9, with an applicable guideline r ange of 4-10 months imprisonment, or in lieu of imprisonment, aterm of probation that includes a condition of home detention or community conf inement. See U.S.S.G.§ 5C1.1 (c)(3). 15 facts make cl ear that

in the brie f moments he was at the helm, Rodriguez-Lopez safely bro ugh t the d ang erou s cha se to a n en d. Ev en if w e view the ev iden ce in th e ligh t mo st fav orab le to th e go vern men t, the factua l record does n ot pro vide en oug h clarity reg arding Rod riguez- Lop ez’s action s in th ose b rief m om ents to wa rran t such a dra matic incre ase in his se nten ce. In this cas e, the bi te from the sent encing enhancement has proven to be far more venomous than the base sentence. Rodriguez-Lopez’s crime, t o which he plead guilty , wa s a m isdem eano r attem pt to r eun ite his f amily by tra velin g to C uba with his co-defend ant to bring his w ife, daughter and so me friends to the U nited States. 6 Given Rodriguez -Lopez’s cooperation with a uthori tie s, he would be eli gible for probati on in combination wit h home or community

detention if

it were not for t

he app lication of th e sen tencin g en han cem ent n ow on a ppe al. 7 That enhanc ement requires Rodriguez-Lopez to serve at least an eighteen-month sente nce. Because I16

do not believe t

he record supports the appl icati on of such a drastic e nhancement, I resp ectfu lly diss ent.