United States v. Israel Guerra Gonzalez

303 F. App'x 814

Opinion

PER CURIAM:

Israel Guerra Gonzalez appeals his sentence of 24 months of imprisonment for conspiring to induce aliens to enter the United States and unauthorized entry into Cuban territorial waters. 8 U.S.C. § 1324(a)(l)(A)(v)(I); 50 U.S.C. § 192. Guerra Gonzalez challenges the three-level enhancement of his sentence for creating a substantial risk of death or serious bodily injury. We affirm.

We review de novo the application of the risk or death or serious injury enhancement to a sentence. United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.2004). The decision that Guerra Gonzalez created a risk of death or serious injury to the aliens he transported is a factual finding that we review for clear error. Id. A district court may enhance a sentence by three levels if the defendant created, either intentionally or recklessly, a substantial risk of death or serious injury to the illegal aliens who he smuggled or transported and the total offense level is less than eighteen. United States Sen tencing Guidelines § 2Ll.l(b)(6) (Nov. 1997). The commentary to section 2L 1.1(b)(6) “emphasizes that [the] provision applies to an array of factual scenarios and should be applied flexiblyf.]” Rodriguez-Lopez, 368 F.3d at 1138; U.S.S.G. § 2Ll.l(b)(6) cmt. n. 5 (“[r]eckless conduct to which the adjustment from subsection (b)(6) applies includes a wide variety of conduct”).

The district court did not clearly err when it found that Guerra Gonzalez created a substantial risk of death or serious bodily injury. Guerra Gonzalez attempted to smuggle twelve aliens from Cuba to the Florida keys on a boat equipped with only five life vests. The aliens would have in all likelihood died or suffered serious injuries if they had fallen overboard in the open seas without a flotation device. The application of the enhancement is consistent with the instruction to apply the enhancement flexibly.

Guerra Gonzalez’s sentence is AFFIRMED.