Relevant Conduct Requires Specific Findings; No Per Se Rules for §2L1.1 Reckless Endangerment Enhancement
Ever get the sense that in some courts the base offense level under guideline §2L1.1 is level 18? Then remember this case, because you'll probably want to cite it a lot. The opinion explains that there are no per se rules concerning the application of §2L1.1's reckless endangerment enhancement, and that simply transporting aliens through the sometimes harsh environment of South Texas simply isn't enough, in itself, to support the enhancement. And in a related holding applicable to a much broader range of cases, the opinion also explains the need for the district court to make specific findings before holding a defendant responsible for the conduct of others under the relevant conduct guideline. On to the facts . . .
Garza pleaded guilty to two counts of alien transportation after being caught with four illegal aliens in the cab of his pickup, only one of whom was in a seat. The two aliens whose testimony was offered to support Garza's guilty plea arrived in his truck via different routes. To simplify the facts somewhat, both aliens spent part of their journeys walking through the South Texas brush to circumvent Border Patrol checkpoints. Alien 1 got separated from his group, and joined Alien 2's group the next morning. The guide from the second group led them to Garza's pickup, and told them to get in. They were later arrested when Garza was pulled over by a sheriff's deputy for diving with an obstructed license plate.
The PSR hit Garza with the reckless endangerment enhancement under §2L1.2(b)(6) "on the grounds that Garza (1) transported unsecured aliens in his vehicle and had done so in the past and (2) subjected them to the hazardous conditions of the South Texas brush for more than a day."
The court overruled Garza’s objection to the reckless endangerment enhancement, adding, “The appellate court needs to recognize what’s happening down here and to protect the integrity of the guidelines by letting the courts examine the circumstances of this crime and making a ruling that this activity, and particularly in this case, is substantial [sic] risk of serious bodily harm.” Seeing this as an opportunityto get further instruction from this court, the district court added, “If [Garza] has a right to appeal, I want him to appeal it. I want the Court of Appeals to write on it so that we can get some appellate guidance.”
The court of appeals happily obliged, and vacated Garza's sentence. The court first explained that while guideline §1B1.3(a)(1)(B)---which imposes liability for the reasonably foreseeable conduct of others in furtherance of jointly undertaken criminal activity---casts a broad net, it is not limitless: "A district court may . . . exercise wide evidentiary latitude at sentencing and may look to the whole conspiracy to determine whether the acts of others were reasonably foreseeable, . . . but it must still make specific findings as to the scope of that conspiracy[.]"
In this case, that meant that Garza could be held responsible for the acts of the operation that brought Alien 2 to his truck, as the evidence clearly showed Garza was working with that operation. But Garza could not be held responsible for the portion of Alien 1's journey that occurred before Alien 1 joined the second group, because there was no evidence at all linking the two smuggling operations. "To hold Garza responsible for the actions of [Alien 1's] group would essentially impute to Garza the actions taken on behalf of every alien-smuggling operation. That would cast the net too widely; nor is this what is contemplated by the guidelines."
The court then moved on to hold that the district court erred in applying the reckless endangerment enhancement in this case, as it "premised its ruling on the notion that transporting aliens through the brush necessarily and always involves subjecting them to a substantial risk of death or serious bodily injury." As the court of appeals pointed out, not only does "our caselaw does not support establishing a per se rule that traveling through the South Texas brush creates a 'substantial risk of death or bodily injury[,]'" but "we have implied that we will not create such per se rules." In past cases affirming the enhancement, the court has looked at the entire picture surrounding the smuggling operation, rather than saying that traveling through the South Texas brush per se triggers the enhancement. The guideline also provides no support for a per se rule:
The only per se example given in the [guideline's] comment[ary] is the first, which covers transporting persons in a trunk or engine compartment of a vehicle. . . . Trunks and engine compartments are not designed to hold human passengers, so transporting someone in them is not safe. The South Texas brush, as inhospitable as it may be, cannot be analogized to trunks and engine compartments. As the district court acknowledged, people do live there.
The remaining examples are not per se rules, but flexible guidelines. The first example relates to “carrying substantially more passengers than the rated capacity of a motor vehicle or vessel.” . . . The operative word is “substantially.” It is not necessarily enough that a vehicle designed for four is carrying five. Probably carrying eight in the vehicle would be. But once again, the guidelines do not create hard and fast rules but are only guides that a district court must interpret in light of the situation before it.
The final example applies to “harboring persons in a crowded, dangerous, or inhumane condition.” . . . This example logically can be applied only to the specific facts of an individual case---the sentencing court must decide whether the conditions were “crowded, dangerous, or inhumane.”
It is not enough to say, as the district court did here, that traversing an entire geographical region is inherently dangerous. It must be dangerous on the facts presented and used by the district court. To the extent that the record supports any particularized findings, they were that the aliens were guided through the brush for about one day in late April and that the mean temperature was 87 degrees. The court did not specifically base its sentence on those facts but instead on the very fact of traveling through the brush.
(emphasis added). And that was error.
So the next time you get a PSR citing generalities about smuggling as support for the reckless endangerment enhancement, you'll have Garza to back you on your objection. Same for situations in which the PSR thinks a citation to §1B1.3 is a sufficient substitute for detailed facts when it comes to relevant conduct.