United States v. Lopez-Rodriguez

18 F. App'x 532

Opinion

MEMORANDUM

Footnotes

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Javier Lopez-Rodriguez appeals from his sentence following conviction by guilty plea to conspiracy to conceal, harbor, shield and transport illegal aliens, in violation of 8 U.S.C. § 1324(a)(l)(A)(v)(I). We have jurisdiction pursuant to 18 U.S.C. § 3742, and we affirm.

Lopez-Rodriguez contends that the district court erred by declining to reduce his offense level by three levels pursuant to USSG § 2Ll.l(b)(l)(A), because he committed the offense not for profit but for the forgiveness of his own smuggling fee. We review the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Velez, 185 F.3d 1048, 1050 (9th Cir.1999).

This case turns on an amendment to the Sentencing Guidelines. Prior to May 1997, the commentary to USSG § 2Ll.l(b)(l)(A) explicitly defined “[f]or profit” to exclude a person who merely worked off his own entry or transportation fee. USSG Appendix C, amendment 543. On May 1, 1997, the commentary was revised to delete this exception.¹ Id.

Commentary and amended commentary to the sentencing guidelines are binding on the courts. Stinson v. United States, 508 U.S. 36, 37-38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

Given the applicable commentary, the district court properly declined to reduce Lopez-Rodriguez’s offense level, because he profited from his offense through the forgiveness of his smuggling debt. See, e.g., United States v. Galvez-Villareal, 3 F.3d 314, 315-16 (9th Cir.1993) (per cu-riam).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1

. USSG § 2L1.1, comment, (n.l), as amended, defines " ‘other than for profit' [to mean] that there was no payment or expectation of payment for the smuggling, transporting, or harboring of any of the unlawful aliens.” The amendment implemented section 203 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. 104-208, 110 Stat. 3009-566, which directed "the Commission to amend the guidelines for offenses related to smuggling, transporting, or harboring illegal aliens.” USSG Appendix C, amendment 543.