United States v. Fernando Martinez-Cuevas

599 F. App'x 743

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2015
• Docket: 14-50099
• Status: Unpublished

Opinion

MEMORANDUM ***

Fernando Martinez-Cuevas appeals from the district court’s judgment and challenges his 46-month sentence imposed following his guilty plea to one count of aiding and assisting an inadmissible alien convicted of an aggravated felony to enter the United States, in violation of 8 U.S.C. § 1327. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Martinez-Cuevas argues that the district court erred by applying a sentencing enhancement under U.S.S.G. § 2Ll.l(b)(6) for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” The commentary notes for U.S.S.G. § 2L1.1 provide:

Reckless conduct to which the adjustment from subsection (b)(6) applies includes a wide variety of conduct (e.g., ... harboring persons in a crowded, dangerous, or inhumane condition; or guiding persons through ... a dangerous or remote geographic area without adequate food, water, clothing, or protection from the elements).

U.S.S.G. § 2L1.1 cmt. n. 5. The undisputed facts in the record show that Martinez-Cuevas along with others used a panga boat — an open air vessel — to- transport twenty-three passengers at night in the open sea for several hours. The boat lacked basic safety features such as a fire extinguisher, navigational lights, sound producing devices, visual distress signals, and other flotation devices such as life rafts or life-saving rings. In addition, the boat was crowded with fuel cans. Accordingly, the district court did not err in applying an enhancement under U.S.S.G. § 2Ll.l(b)(6).

Martinez-Cuevas also argues that 8 U.S.C. § 1327 violates the Due Process Clause because it is a strict liability crime. In United States v. Flores-Garcia, 198 F.3d 1119, 1123 (9th Cir.2000), we interpreted 8 U.S.C. § 1327 and concluded that “[t]he defendant’s knowledge of an alien’s prior felony conviction is not an element of 8 U.S.C. § 1327; the government need only prove that the defendant knew that the alien he aided or assisted was inadmissible to the United States.” Martinez-Cuevas argues that Flores-Garcia was wrongly decided. However, we are bound by the holding in Flores-Garcia. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc). Moreover, under the holding of Flores-Garcia, 8 U.S.C. § 1327 contains the mens rea requirement that the defendant have known “that the alien he aided or assisted was inadmissible to the United States.” Flores-Garcia, 198 F.3d at 1123. Therefore, 8 U.S.C. § 1327 is not, as Martinez-Cuevas argues, a strict liability crime. See United States v. Bailey, 444 U.S. 394, 406 n. 6, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (explaining that a strict liability crime is a “crime for which punishment can be imposed without proof of any mens rea at all.” (emphasis added)); see, e.g., United States v. Cupa-Guillen, 34 F.3d 860, 863 (9th Cir.1994) (rejecting defendant’s argument that 8 U.S.C. § 1326(b)(2) is a strict liability crime because the statute contains the requirement that the government prove that the defendant acted with the general intent to reenter the United States). Accordingly, we reject Martinez-Cuevas’ challenge to the constitutionality of 8 U.S.C. § 1327.

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.