FILED
United States Court of Appeals
Tenth Circuit

SEP 29 2004

PATRICK FISHER
Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

		Plaintiff-Appellee,     

v.

MIGUEL ANGEL MALDONADO-RAMIRES,

		Defendant-Appellant.     
	
		No. 03-1458

	

	Appeal from the United States District Court
for the District of Colorado
(D.C. No. 03-CR-80-RB)

Stephen L. Laiche, Griff, Larson & Laiche, Grand Junction, Colorado, for Defendant-Appellant.

James C. Murphy, Assistant United States Attorney (John W. Suthers, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before SEYMOUR, HOLLOWAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

	Miguel Maldonado-Ramires pleaded guilty to transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(i), (a)(1)(B)(ii), and (a)(1)(B)(iv).  In arriving at a sentence under the United States Sentencing Guidelines (“U.S.S.G.”), the district court increased Maldonado-Ramires’ base offense level by two points pursuant to § 2L1.1(b)(5).  In so doing, the district court concluded that Maldonado-Ramires’ offense conduct had “recklessly creat[ed] a substantial risk of death or serious bodily injury to another person.”  U.S.S.G. § 2L1.1(b)(5).  Maldonado-Ramires appeals, asserting the district court erred in concluding that his offense conduct was reckless within the meaning of § 2L1.1(b)(5).  This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirms the sentence imposed by the district court.
	In February of 2003, Maldonado-Ramires was driving a minivan along a stretch of Interstate 70 in Colorado.  In addition to Maldonado-Ramires, the van contained six illegal aliens.  Maldonado-Ramires lost control of the minivan, causing it to roll over.  One of the passengers was killed in the accident and several others were injured.  At the time of the accident, one passenger was sitting in the front passenger seat and the remaining five passengers were lying on the floor of the minivan.  The rear seats and seatbelts had been removed from the van and Maldonado-Ramires had directed the aliens to lie down on the floor of the minivan to avoid detection.  Although Maldonado-Ramires fled the scene of the accident, he was eventually apprehended and charged with transporting illegal aliens within the United States for the purpose of commercial advantage and private financial gain and thereby causing serious bodily injury, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(i), (a)(1)(B)(iii), (a)(1)(B)(iv). [Id. at 3-4] Maldonado-Ramires pleaded guilty to the charge.
	The only contested matter at sentencing was the applicability of U.S.S.G. § 2L1.1(b)(5).  Section 2L1.1(b)(5) directs the sentencing court to increase a defendant’s offense level by two levels “[i]f the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.”  Application note six to § 2L1.1 provides that “[r]eckless conduct to which the adjustment from subsection (b)(5) applies includes a wide variety of conduct (e.g., transporting persons in the trunk or engine compartment of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, or harboring persons in a crowded, dangerous, or inhumane condition).”  In concluding that Maldonado-Ramires’ offense conduct fell within the ambit of § 2L1.1(b)(5), the district court relied on the fact that the rear seats and seatbelts had been removed from the van and on Maldonado-Ramires’ mandate that the passengers remain on the floor of the van at all times.  In this regard, the district court concluded as follows:
	In the manner in which the defendant, not merely allowed, but instead directed, coerced and controlled the transportation of these hapless aliens, the defendant recklessly exposed them to exactly the risks which materialized, death and serious bodily injury, and deprived them of any means whatsoever of self-defense.		
	The dangers to these passengers, forced to ride in the manner and circumstances dictated solely by the defendant, are obvious, and are exacerbated beyond mere negligence or gross negligence as those terms are commonly defined.
	By requiring these passengers to lie down in an inherently restricted area without the—without the benefit of any safety restraints or cautions, depriving them even of the opportunity to observe and to react as best they could accordingly, he exposed them to a substantial risk, and an unjustified risk of death and serious bodily injury, and in so doing transported them, in the words of the application note, in dangerous conditions.
	This court reviews “the district court’s interpretation of the Sentencing Guidelines de novo, and its factual findings for clear error, giving due deference to the district court’s application of the Guidelines to the facts.”  United States v. Jardine, 364 F.3d 1200, 1206 (10th Cir. 2004).  Maldonado-Ramires does not dispute the district court’s factual findings, but instead argues that the facts found by the district court do not support an enhancement under § 2L1.1(b)(5).  According to Maldonado-Ramires, because he was not carrying more passengers than the rated capacity of the van, the van was mechanically sound, and all passengers were in the cab of the van, a § 2L1.1(b)(5) enhancement is not appropriate.  Maldonado-Ramires’ arguments are unconvincing.
	It must first be noted that application note six to § 2L1.1 makes clear that the “[reckless conduct to which the adjustment from subsection (b)(5) applies includes a wide variety of conduct.”  Thus, although Maldonado-Ramires is correct to assert that the § 2L1.1(b)(5) enhancement has most often been applied when the vehicle driven by the smuggler was carrying more passengers than the rated capacity of the vehicle, that surely does not foreclose the application of the enhancement in the face of other dangerous conditions.  See, e.g., United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137-38 (11th Cir. 2004) (holding that § 2L1.1(b)(5) enhancement appropriate based on lack of sufficient number of life jackets on boat and noting that such a rule is consistent with cases applying the “enhancement to alien smugglers who transport aliens on roadways without sufficient seats or seatbelts”); United States v. Cuyler, 298 F.3d 387, 391 (5th Cir. 2002) (holding that § 2L1.1(b)(5) enhancement was appropriate where illegal aliens were transported lying down in the bed of a pickup truck, despite fact that it was legal in Texas for adults to travel unrestrained in such a manner); United States v. Hernandez-Guardado, 228 F.3d 1017, 1027-28 (9th Cir. 2000) (holding that § 2L1.1(b)(5) enhancement appropriate where overcrowding of vans appeared minimal but “passengers were not strapped into seats with seatbelts but were instead lying unrestrained on floorboards and across the seats”).  Upon consideration of the authorities cited by the parties, this court concludes that the district court did not err in concluding Maldonado-Ramires’ offense conduct fell within the ambit of § 2L1.1(b)(5) when Maldonado-Ramires transported the illegal aliens in a minivan altered to remove the rear seats and seatbelts, Maldonado-Ramires was the only driver on a lengthy trip from Arizona to Florida, and Maldonado-Ramires mandated that the passengers always remain prone on the floor of the van, leaving them completely unable to react to any dangerous driving conditions that might arise during the trip.
	The sentence entered by the United States District Court for the District of Colorado is hereby AFFIRMED.