USA v. Ramirez, No. 21-40557 (5th Cir. 2022)
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Defendant pleaded guilty to transporting an alien within the United States in violation of 8 U.S.C. Section 1324(a)(1)(A)(ii) and (a)(1)(B)(i). At sentencing, the district court enhanced his total offense level for reckless endangerment pursuant to Section 2L1.1(b)(6) and for reckless endangerment while fleeing pursuant to Section 3C1.2. Defendant did not object and was sentenced at the bottom of the guideline range to 37 months of imprisonment. On appeal, Defendant argued that the district court plainly erred by enhancing his total offense level pursuant to Section 2L1.1(b)(6).
The Fifth Circuit held that the district court plainly erred by enhancing Defendant’s total offense level pursuant to Section 2L1.1(b)(6). Here, in support of the Section2L1.1(b)(6) enhancement, the presentence report cited the CBP agents’ findings that Defendant was transporting five undocumented aliens, four of whom were unrestrained, plus himself in a vehicle with a seating capacity of five. In support of the Section 3C1.2 enhancement, the PSR cited the 14-mile chase where Defendant reached speeds of up to 105 miles per hour at night. Because the district court enhanced Defendant’s sentence under both provisions, the Section 2L1.1(b)(6) enhancement cannot be based on his conduct while fleeing from the CBP agents. Thus, any support for the Section 2L1.1(b)(6) enhancement must come from his pre-flight activity. Defendant’s pre-flight activity does not support a Section 2L1.1(b)(6) enhancement, even under plain error review.
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