Hiding in Sleeper Compartment of Tractor-Trailer Not §2L1.1 Reckless Endangerment

United States v. Torres, No. 09-40678 (5th Cir. Mar. 4, 2010) (per curiam) (Jolly, Dennis, Jordan, D.J.)

I've sometimes wondered how long it would take for a 1000 monkeys pecking away at a 1000 typewriters to answer every possible COV question out there. Probably about as long as it would take those same monkeys to answer whether every conceivable alien-smuggling scenario calls for a reckless endangerment enhancement under guideline §2L1.1(b)(6). The point being: there sure seem to be a lot of these cases. Here's another one of the latter.

Our factual permutation for today: eight-year-old child riding in a 15" x 15" x 36" space under the sleeping area of a big rig tractor. Reckless endangerment, yay or nay?

Nay:

Here, the district court adopted the PSR as its findings of fact. In doing so, it adopted the recommendation to apply the enhancement because “[t]he area dimensions where the 9 year-old was concealed measured approximately 15 inches high by 15 inches deep by 36 inches wide. This confined space subjected the child to a substantial risk of death or serious bodily injury and warrants the adjustment.”

While the space under the sleeping area in Torres’s tractor-trailer was small, so was the child. Moreover, the child was not separated from the driver’s cab area, was near her mother and the driver, and could communicate with others. An agent testified that there was no lack of oxygen. Similarly, there was no finding that she was exposed to extreme temperatures, and the parties agree the child exited the tractor-trailer without assistance.

To reach that conclusion, the court considered the five factors identified in Zuniga-Amezquita, reminding once again that "[s]ection 2L1.1(b)(6) requires a case-specific analysis" (albeit without the somewhat exasperated tone of Garza). Given that, you may be asking yourself: why was this case published? It simply applies a well-established analytical framework to a highly fact-bound question, and at least some of these aren't published. One possbility: the court recognizes that we just don't have time to keep waiting on those monkeys. (To put the matter in perspective, "In 2003, an experiment was performed with six Celebes Crested Macaques. Their literary contribution was five pages consisting largely of the letter 'S'.") A marginally more plausible possbility: enough of these turn out the wrong way below that a published opinion is necessary every now and then to remind everyone how this enhancement works.

Relevant Conduct Requires Specific Findings; No Per Se Rules for §2L1.1 Reckless Endangerment Enhancement

United States v. Garza, No. 07-40962 (5th Cir. Aug. 13, 2008) (Smith, DeMoss, Stewart)

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.

Sentence Vacated: Evidence Insufficient to Support 3C1.2 Reckless Endangerment Enhancement

United States v. Gould, No. 06-11058 (5th Cir. May 21, 2008) (Davis, Southwick, Clark, D.J.)

Gould was at a house when a SWAT team showed up to execute a search warrant for drugs. Presumably not wanting to make the officers' acquaintance, Gould fled out foot out the back door past an officer who pointed a gun at him and ordered him to stop. Other officers quickly captured him. The search turned up guns, ammo, and various drugs in the house, in Gould's car, and on his person.

Gould later pleaded guilty to gun and drug charges. His PSR recommended a two-level enhancement under guideline §3C1.2 for reckless endangerment during flight, based on this rationale: "At the time of [Gould’s] arrest, he attempted to evade arrest by running from officers, which had ordered him to stop and had their weapons drawn. The defendant was apprehended after a foot chase ensued with officers." That, along with other calculations, put Gould at a Guidelines range of 168 to 210 months on the drug count. The district court overruled Gould's objection to the reckless endangerment enhancement, and sentenced him to 270 months' imprisonment (210 months for the drug count, plus 60 consecutive months on the gun count).

Gould appealed, arguing that 1) there was insufficient evidence to support the reckless endangerment enhancement, 2) his sentence was unreasonable, and 3) the district court "failed adequately to justify his sentence." The court of appeals declined to address the reasonableness arguments, as it agreed with Gould on the enhancement.

The Government argued that

the facts surrounding Gould’s arrest support the adjustment because Gould’s flight created a more dangerous situation than usually occurs when a suspect evades arrest. For example, both the Wichita Police Department and a SWAT team were involved in execution of the search warrant at a known crack-house – making the situation more chaotic and potentially dangerous when Gould fled. In addition, Gould’s continued flight after officers pulled their weapons and ordered him to stop caused the officers to pursue him with their weapons drawn, increasing the risk of death or serious injury to the officers or others in the area.

The court disagreed, pointing out the lack of any evidence beyond the rationale the PSR offered to support the enhancement:

For example, the record is unclear on how far Gould ran, although the Government stipulated that it was a “short” chase. There is also no description of the area where the chase occurred – although the area was described as a “grass field.”

We reject the Government’s argument that Gould’s fleeing despite the fact that armed officers were instructing him to stop justifies an inference that Gould was acting recklessly. There was no evidence presented that Gould heard the officers order him to stop or that he reacted in a threatening way or made any threatening actions toward the officers as he ran. In fact, there is no evidence that Gould did anything other than run from the house after the officers entered.

(internal cite snipped). The court also pointed to a decision from another circuit in which simply running from police, even when it resulted in armed pursuit, did not justify the enhancement.

The court thus concluded that

[t]he record is too sparse for us to determine whether Gould was reckless. Gould fled for an undefined but admittedly short distance from the officers executing the search warrant. He may have run into a field. We cannot say, considering the record as a whole, that Gould acted recklessly and in a manner that created a substantial risk of injury. The kind of detail missing here can be contrasted with a case in which we sustained use of the enhancement when there was evidence that the fleeing defendant led pursuing officers across four lanes of a busy interstate highway.

(cite banished). Unfortunately, in vacating and remanding for a new sentencing hearing, the court states that "[a]dditional relevant evidence of the flight is admissible on resentencing if the Government has any to offer." There really ought to be a rule against the Government getting a second bite at the apple when it fails to present enough evidence to support an enhancement, especially when it saw fit to rely on such a plainly insufficient basis on the first chomp.