Tuesday, March 23, 2010

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?


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.

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