USA V. FERNANDO MARTINEZ-CUEVAS, No. 14-50099 (9th Cir. 2015)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 13 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 14-50099 D.C. No. 8:13-cr-00116-CJC-1 v. MEMORANDUM* FERNANDO MARTINEZ-CUEVAS, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted April 9, 2015** Pasadena, California Before: SILVERMAN and BEA, Circuit Judges and QUIST,*** Senior District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gordon J. Quist, Senior District Judge for the U.S. District Court for the Western District of Michigan, sitting by designation. -2Fernando 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. § 2L1.1(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 MartinezCuevas 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. -3Accordingly, the district court did not err in applying an enhancement under U.S.S.G. § 2L1.1(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 MartinezCuevas argues, a strict liability crime. See United States v. Bailey, 444 U.S. 394, 406 n.6 (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 -4because the statute contains the requirement that the government prove that the defendant acted with the general intent to re-enter the United States). Accordingly, we reject Martinez-Cuevas’ challenge to the constitutionality of 8 U.S.C. § 1327. AFFIRMED.

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