Concealing Aliens Under Luggage and Boxes in Van's Cargo Area Constituted Reckless Endangerment Under U.S.S.G. §2L1.1(b)(5)
United States v. Zuniga-Amezquita, No. 06-40081 (5th Cir. Oct. 31, 2006) (Jones, Smith, Stewart)
Zuniga-Amezquita finds the court again addressing whether the U.S.S.G. §2L1.1(b)(5) reckless endangerment enhancement applies to the particular facts of an alien smuggling offense. After canvassing recent case law on the subject, the court concludes that riding in the cargo area of a vehicle is not sufficient in and of itself to support application of the enhancement. Instead, there must be some additional aggravating factors to warrant a finding of reckless endangerment. The court identifies five of those factors, and concludes that two of them supported the district court's application of the enhancement to Zuniga.
Zuniga was caught at a border patrol checkpoint transporting five illegal aliens in a van. The aliens were lying down in the cargo area of the van. There were boxes and luggage stacked on top of them all the way to the van's ceiling, although they still had enough room to lay side-by-side and breathe freely. The district court applied the enhancement, "concluding that if the van had to stop suddenly the boxes and luggage could fly around and injure the aliens[,]" and that "[i]f an accident occurred the boxes could conceal the aliens such that emergency personnel might not search for them . . . ." Slip op. at 2. It also found that the weight of the boxes and luggage might prevent the aliens from being able to get out of the van on their own.
Because the application of the enhancment is so case-specific, the court of appeals began by surveying four relatively recent decisions to establish a framework for its analysis. Those cases involved aliens riding 1) in the back of a pickup on the highway (yes, enhancement applies); 2) in the cargo area of a hatchback under an easily removable cover (no); 3) on the floor of a minivan partially concealed under a console (yes); and 4) lying side-by-side in the cargo area of a minivan (no). This case law survey shows that riding in the cargo area of a vehicle is not sufficient to support a finding of reckless endangerment unless there are additional aggravating factors present. The court identified five of those factors that had been important in the other cases: "the availability of oxygen, exposure to extreme temperatures, the aliens' ability to communicate with the driver of the vehicle, their ability to exit the vehicle quickly, and the danger to them if an accident occurs." Slip op. at 4.
The court held that the last two factors supported application of the enhancement in Zuniga's case. First, the luggage and boxes were heavy and arranged in such a way that the aliens could not easily extricate themselves from the van. "Transporting aliens in a manner that significantly hinders their ability to exit the vehicle quickly creates a substantial risk of death or serious bodily injury." Slip op. at 4. Second, as the district court found, there was a danger that the boxes could fly around in the event of an accident and injure the aliens, particularly because some of boxes contained glass bottles of beer.
There are a couple of points to take away from this opinion. First, the court repeatedly emphasizes the fact-specific nature of the enhancement. That allows counsel lots of room to argue against the enhancement in any given case, and plenty of opportunties to distinguish other cases on the facts. Second, to the extent that there's any bright line at all, it's this: "The application of § 2L1.1(b)(5) is warranted if a method of transportation exposes aliens to a substantial risk, in the event of an accident, of death or serious bodily injury. The risk must, however, be greater than that of an ordinary passenger not wearing a seatbelt in a moving vehicle." Slip op. at 5.
Zuniga-Amezquita finds the court again addressing whether the U.S.S.G. §2L1.1(b)(5) reckless endangerment enhancement applies to the particular facts of an alien smuggling offense. After canvassing recent case law on the subject, the court concludes that riding in the cargo area of a vehicle is not sufficient in and of itself to support application of the enhancement. Instead, there must be some additional aggravating factors to warrant a finding of reckless endangerment. The court identifies five of those factors, and concludes that two of them supported the district court's application of the enhancement to Zuniga.
Zuniga was caught at a border patrol checkpoint transporting five illegal aliens in a van. The aliens were lying down in the cargo area of the van. There were boxes and luggage stacked on top of them all the way to the van's ceiling, although they still had enough room to lay side-by-side and breathe freely. The district court applied the enhancement, "concluding that if the van had to stop suddenly the boxes and luggage could fly around and injure the aliens[,]" and that "[i]f an accident occurred the boxes could conceal the aliens such that emergency personnel might not search for them . . . ." Slip op. at 2. It also found that the weight of the boxes and luggage might prevent the aliens from being able to get out of the van on their own.
Because the application of the enhancment is so case-specific, the court of appeals began by surveying four relatively recent decisions to establish a framework for its analysis. Those cases involved aliens riding 1) in the back of a pickup on the highway (yes, enhancement applies); 2) in the cargo area of a hatchback under an easily removable cover (no); 3) on the floor of a minivan partially concealed under a console (yes); and 4) lying side-by-side in the cargo area of a minivan (no). This case law survey shows that riding in the cargo area of a vehicle is not sufficient to support a finding of reckless endangerment unless there are additional aggravating factors present. The court identified five of those factors that had been important in the other cases: "the availability of oxygen, exposure to extreme temperatures, the aliens' ability to communicate with the driver of the vehicle, their ability to exit the vehicle quickly, and the danger to them if an accident occurs." Slip op. at 4.
The court held that the last two factors supported application of the enhancement in Zuniga's case. First, the luggage and boxes were heavy and arranged in such a way that the aliens could not easily extricate themselves from the van. "Transporting aliens in a manner that significantly hinders their ability to exit the vehicle quickly creates a substantial risk of death or serious bodily injury." Slip op. at 4. Second, as the district court found, there was a danger that the boxes could fly around in the event of an accident and injure the aliens, particularly because some of boxes contained glass bottles of beer.
Being struck by a flying box, piece of luggage, bottle of beer, or glass could cause serious bodily injury. Zuniga-Amezquita’s transportation method placed the aliens in danger of incurring such an injury in the event of an accident. The risk of injury was greater than that faced by an ordinary passenger, without a seatbelt, who is not surrounded by boxes and luggage piled to the ceiling of a vehicle.Slip op. at 5.
There are a couple of points to take away from this opinion. First, the court repeatedly emphasizes the fact-specific nature of the enhancement. That allows counsel lots of room to argue against the enhancement in any given case, and plenty of opportunties to distinguish other cases on the facts. Second, to the extent that there's any bright line at all, it's this: "The application of § 2L1.1(b)(5) is warranted if a method of transportation exposes aliens to a substantial risk, in the event of an accident, of death or serious bodily injury. The risk must, however, be greater than that of an ordinary passenger not wearing a seatbelt in a moving vehicle." Slip op. at 5.
posted by Brad Bogan at 8:33 AM
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