Monday, February 11, 2008

Good Unpublished Opinion Rejecting Speculative Reasoning Underlying Reckless Endangerment Bump in Alien Transporting Case

United States v. Balderas-Gonzalez, No. 07-20533 (5th Cir. Feb. 1, 2008) (revised Feb. 8, 2008) (unpublished) (Wiener, Barksdale, Dennis)

It's too bad this opinion is unpublished. The actual fact pattern isn't likely to come up all that often, but the opinion is still valuable for its rejection of the type of speculative reasoning that is used all too often to justify Guidelines enhancements.

Balderas was one of a group of aliens who had been smuggled into the U.S. One day the smugglers offered to discount his smuggling fee if he would drive a car containing some of the other aliens. Balderas agreed and, following a lead car driven by the coyotes, drove north in a Ford Taurus with three other aliens in the passenger compartment. Unbeknowst to Balderas, there were also three aliens concealed in the trunk. Balderas and the other aliens were caught after a Texas DPS trooper pulled the car over for speeding on U.S. Highway 59.

Balderas later pleaded guilty to alien transportation for gain. The probation officer recommended a 2-level reckless endangerment enhancement due to the aliens in the trunk. Balderas objected, asserting that he was given the keys to an already-loaded car, and that he didn't know the aliens were in the trunk. The probation officer responded "by stating that '[s]ince the defendant traveled with this group of aliens, it is possible that the defendant was present when the aliens were being loaded and that he would have seen some aliens get into the trunk. Additionally, during an alien smuggling offense, it is not uncommon and it is reasonably foreseeable, that aliens would travel in any available space, including the trunk.'" At sentencing, "[t]he district court rejected Balderas's objection and stated that it was 'relying on the presentence report' to establish that he knew or should have known that aliens were in the trunk of the Taurus."

Balderas challenged the enhancement on appeal. The Government countered that Balderas knew or should have known the aliens were in the trunk based on the following circumstances: "(1) Balderas traveled with a group of aliens for several days prior to driving the vehicle, (2) he was present during daylight hours at the location where the aliens were loaded into the Taurus, . . . (3) there is no evidence that he was not present when the three males got into the trunk of the car[,]" and (4) "even if Balderas did not witness the entry of the aliens into the trunk of the Taurus, he should have known that aliens were in the trunk because three of the aliens who had been traveling in his group were not with him in the passenger compartment of the Taurus."

The court rejected the Government's arguments, pointing out that there was no direct evidence of Balderas's knowledge. There was also some evidence tending to support Balderas's credibility and version of events. Ultimately, the court's "review of the evidence in the record reveal[ed] only the mere possibility that Balderas knew or should have known that aliens were loaded in the trunk of the Taurus. And, a mere possibility is insufficient to meet the government’s burden of proving, by a preponderance of the evidence, that Balderas intentionally or recklessly created a substantial risk of death or serious bodily injury under 2L1.1(b)(6)."

The court also rejected the Government's alternative argument "that Balderas should be held accountable for transporting aliens in the trunk of the Taurus because, under U.S.S.G. 1B1.3(a)(1)(B), a defendant is responsible for 'all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,' regardless of whether the defendant was charged with conspiracy." As the court pointed out, that provision only applies to conduct that occurs after the defendant joins the conspiracy. Here, there was no evidence that Balderas agreed to drive the car before the aliens were loaded into the trunk, so the relevant conduct guideline didn't apply.

You can't cite this opinion as binding authority, of course. But you can certainly rely on it as persuasive authority when arguing that speculative possibilities aren't enough to carry the Government's burden of establishing guideline-enhancing facts by a preponderance of the evidence. Especially anytime the probation officer or the Government is relying on the argument that, "There's no evidence he didn't know."

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