United States v. Munoz-Tello

FILED
United States Court of Appeals
Tenth Circuit

July 1, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 07-2007

ISRAEL MUNOZ-TELLO,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 06-0607 MCA)

Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, NM for
Defendant-Appellant

David N. Williams, Assistant United States Attorney (Larry Gomez, Acting
United States Attorney, with him on the brief), Albuquerque, NM for Plaintiff-
Appellee

Before MURPHY, EBEL and O’BRIEN, Circuit Judges.

EBEL, Circuit Judge.

Before daybreak on February 23, 2006, Defendant-Appellant Israel Munoz-

Tello (“Munoz”) rolled the Chevrolet Suburban he was driving on a New Mexico
highway. With Munoz in the vehicle were eleven unlawful aliens bound for

Atlanta, Georgia. Four of his passengers died; several others suffered severe

injuries. As a result, a federal grand jury indicted Munoz, charging him with

seven violations of immigration laws barring the transport of illegal aliens.

Munoz pled guilty to four counts of Transporting an Illegal Alien Resulting in

Death, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(iv).

In sentencing Munoz to 96 months in prison, the district court decided to

(1) increase his base offense level pursuant to U.S. Sentencing Guidelines

(“U.S.S.G.”) § 2L1.1(b)(5) for recklessly endangering his passengers, and (2)

depart upward from Munoz’s advisory guidelines range because the accident

resulted in four deaths. In departing upwards, the court employed a paradigm for

departures approved of by this court in United States v. Jose-Gonzalez, 291 F.3d

697 (10th Cir. 2002). Munoz lodged timely objections to both the enhancement

and the upward departure; he now renews his objections on appeal. We exercise

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm.

I. BACKGROUND

Munoz, a Mexican citizen, has shuttled back and forth between Atlanta and

Hidalgo, Mexico for about a decade. Immigration records reveal that Munoz has

been apprehended by the U.S. Border Patrol on eleven prior occasions. 1

1
Munoz’s presentence report (“PSR”), prepared by the U.S. Probation
(continued...)

-2-
 The Accident

Just before 5:00 a.m. on February 23, 2006, deputies from the Santa Fe

County Sheriff’s Office arrived at the scene of a single-vehicle accident alongside

the southbound lanes of State Highway 599. The deputies noted that a 1997

Chevrolet Suburban had crashed; twelve individuals, suffering from various

injuries, were strewn about the crash site. The Suburban had rolled over three

times, throwing all the passengers out of the vehicle. Emergency medical crews

arrived, and declared four of the passengers dead at the scene of the accident. 2

Ambulance crews took three other passengers – and Munoz – to a Santa Fe

hospital. 3 Because of their critical injuries, two other passengers were airlifted to

an Albuquerque hospital. 4 Two passengers suffered only minor injuries.

1
(...continued)
Office, notes that “[o]n three of the occasions,” all in 2005, Munoz “was
identified as the driver of vehicles transporting illegal aliens into the United
States.” After each of the eleven apprehensions, Munoz voluntarily returned to
Mexico.
2
The deceased were identified as Libiardo Salvador-Gomez, age 15; Martin
Pedraza-Vega, age 32; Rogelio Pedraza-Valdez, age 18; and Javier Cruz-Urbina,
age 26. According to the New Mexico Office of the Medical, each died from
blunt force trauma to the skull.
3
These passengers were identified as Gabriel Garcia, age 38; Jorge
Guzman-Meza, age 31; and Javier Cruz-Franco, age 17.
4
These passengers, Juliana Garcia and Jose Antonia Garcia-Mondragon,
were both 15 years old. The PSR and the sentencing hearing testimony elucidated
the extent of the injuries suffered by the passengers who survived the accident.
The impact of the crash had detached one passenger’s leg. Another passenger
(continued...)

-3-
 With the exception of Munoz, none of the Suburban’s occupants was

wearing a seatbelt. Indeed, Munoz had instructed two 15-year-old passengers to

lie down in the Suburban’s rear cargo area for the duration of the drive. The PSR

asserted, based on the expertise of an immigration official and a Santa Fe

Chevrolet dealer, that a 1997 Suburban is built to transport eight adults, total.

Deputy Bill Ritch – a Santa Fe police officer who participated in efforts to

reconstruct how the accident occurred – corroborated this assessment of the

vehicle’s rated occupant capacity.

After the accident, immigration officials interviewed two of Munoz’s

passengers. Both indicated that they had illegally entered the United States and

were being driven to Atlanta by Munoz. Both stated that Munoz had been driving

for over ten hours at the time of the accident. Investigators also spoke with

Munoz. Munoz reported that a person unknown to him had given him $600 in

driving expenses to drive eleven illegal aliens from Phoenix to Atlanta.

According to Munoz, the crew of twelve left Phoenix at approximately 6 p.m.; he

had driven straight through the night, traveling back roads to avoid detection. He

claimed that the Suburban rolled after he swerved to avoid debris in the road.

4
(...continued)
had extensive head injuries, which required surgery and prolonged physical
therapy. A third passenger remained in a coma at the time of the sentencing
hearing.

-4-
 During the sentencing hearing, Deputy Ritch explained the accident

reconstruction process and its results. He testified that “based on the evidence, it

looked like the driver had fallen asleep because the tire marks were just in a

straight drift off the road” until they turned sharply when the driver awoke and

overcorrected. 5 While Munoz maintained that he swerved to avoid debris in the

roadway, Deputy Ritch noted that he had found no debris in the roadway when he

inspected the highway on the morning of the accident. Nonetheless, the only

first-hand account of what occurred is Munoz’s; the passengers who survived the

crash indicated that they were asleep at the time of the accident.

The Criminal Charges

On March 21, 2006, a federal grand jury returned a seven-count Indictment

against Munoz. 6 Pursuant to a plea agreement, Munoz pled guilty to Counts 4, 5,

6, and 7, Transporting an Illegal Alien Resulting in Death (in violation of 8

U.S.C. § 1324(a)(1)(A)(ii) & 1324(a)(1)(B)(iv), and Aiding and Abetting (in

5
Deputy Ritch also estimated that the vehicle was traveling approximately
58 to 67 miles an hour, a legal speed for that stretch of highway.
6
Counts 1 and 2 of the Indictment charged Munoz with Transporting an
Illegal Alien and Creating a Substantial Risk of Death, and Aiding and Abetting,
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), 1324(a)(1)(B)(iii) and
1324(a)(1)(A)(v)(II). Count 3 charged Munoz with Transporting an Illegal Alien
Resulting in Serious Bodily Injury, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)
and 1324(a)(1)(B)(iii), and Aiding and Abetting, in violation of 8 U.S.C. §
1324(a)(1)(A)(v)(II).

-5-
violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II)). The government dismissed counts

1, 2 and 3 after Munoz’s plea.

The Presentence Report

The probation office calculated Munoz’s total offense level and criminal

history category using the 2005 Guidelines. The PSR set Munoz’s base offense

level at 12, pursuant to U.S.S.G. § 2L1.1(a)(2). 7 Because Munoz’s offense

“involved the smuggling, transporting, or harboring of” between six and twenty-

four unlawful aliens, the probation office tacked on three levels. See U.S.S.G. §

2L1.1(b)(2)(A). Another three levels were added because Munoz’s offense

“involved intentionally or recklessly creating a substantial risk of death or serious

bodily injured to another person” under U.S.S.G. § 2L1.1(b)(5). 8 The probation

office added eight more levels as required by § 2L1.1(b)(6) because a person died

as a result of Munoz’s accident. Munoz accepted responsibility for his offenses,

and, accordingly, the probation office deducted three offense levels. See

U.S.S.G. § 3E1.1. Summed, these specific offense characteristic adjustments

resulted in a total offense level of 23. Munoz has no prior criminal convictions,

7
Pursuant to U.S.S.G. § 3D1.2, the four counts to which Munoz pled guilty
are grouped to a single offense level.
8
Under U.S.S.G. § 2L1.1(b)(5), the defendant’s offense level is increased
by two levels, unless the resulting offense level remains less than 18. In that
case, it is automatically raised to level 18.

-6-
which placed him in criminal history category I. 9 These two metrics set Munoz’s

advisory sentencing guidelines range at 46 to 57 months in custody.

However, the probation office identified a factor that it felt warranted an

upward departure from that range. Looking to U.S.S.G. § 5K2.1, the probation

office reasoned that the four deaths caused by the accident “were not adequately

taken into consideration” by the other guidelines. Accordingly, rather than a 46

to 57 month sentence, the probation office recommended a sentence of 87 months

for each count, to be served concurrently. The probation office arrived at this

figure by departing upward four levels – to a total offense level of 27 – on the

ground that this situation could be analogized to “the rules of grouping multiple

counts under U.S.S.G. § 3D1.4, and other similar convictions such as Involuntary

Manslaughter.” This, the PSR stated, would account for the multiple victims of

the accident (who would otherwise not affect Munoz’s sentence because of the

grouping of the four counts to which Munoz pled guilty).

Munoz objected both to the § 2L1.1(b)(5) enhancement and the

recommended upward departure. He also requested a downward variance,

marshaling letters from many of his family members in support of his request.

Each testified to Munoz’s good character, casting him as a hard-worker, a caring

9
The probation office noted, however, that the U.S. Border Patrol had
apprehended Munoz on eleven prior occasions, and each time had allowed him to
return voluntarily to Mexico.

-7-
family member, and a generally virtuous person. For its part, the government

moved for an upward departure, seeking a sentence of 96 months. In response to

Munoz’s objections, the probation office resolutely asserted that Munoz acted

recklessly (by driving for ten hours at night in an overloaded vehicle) and that an

upward departure was warranted.

The Sentence Imposed by the District Court

At the sentencing hearing, the court engaged in an extended colloquy with

Munoz’s counsel and the government attorney regarding whether Munoz’s

conduct was reckless. Judge Armijo then adopted the PSR’s factual findings and

also incorporated the testimony presented at the hearing. Based on the evidence

before her, the sentencing judge found that the Suburban driven by Munoz was

“substantially overloaded and overcrowded,” which “made the defendant’s

vehicle less safe because there were not seats or seat bets [sic] for all of the

vehicle’s occupants.” The situation was especially unsafe, the court found, for

the two passengers whom Munoz instructed to lie down in the cargo area. The

court also found it “likely that the overloading of the vehicle adversely affected

its handling and maneuverability.” Finally, the court cited the “duration of this

defendant’s journey” as added support for her conclusion that Munoz acted

recklessly enough to justify the § 2L1.1(b)(5) enhancement.

As for the upward departure, the court looked to U.S.S.G. § 5K2.1 and the

“methodology articulated” in Jose-Gonzalez. As noted above, U.S.S.G. § 3D1.2

-8-
directs the court to “group” the four counts to which Munoz pled guilty and to

assign that “group” the offense level “for the most serious of the counts

comprising the Group,” U.S.S.G. § 3D1.3(a). Citing Jose-Gonzalez, the court

noted that the rationale for this rule is that the “victim” contemplated by the

offense is “the same single victim – the societal interest in controlling

immigration.” Here, however, there were human victims. Thus, the court felt it

necessary to forego the “grouping” rule and instead extrapolate from § 3D1.4.

Under U.S.S.G. § 3D1.4, 10 the court counted the four decedents enumerated

in counts 4 through 7 of the Indictment (the courts to which Munoz pled guilty) as

10
In relevant part, § 3D1.4 provides:
The combined offense level is determined by taking the offense level
applicable to the Group with the highest offense level and increasing
that offense level by the amount indicated in the following table:

Number of Units Increase in Offense Level
... ...
3½–5 add 4 levels

More than 5 add 5 levels.

In determining the number of Units for purposes of this section:
(a) Count as one Unit the Group with the highest offense level. Count
one additional Unit for each Group that is equally serious or from 1
to 4 levels less serious.
....
U.S.S.G. § 3D1.4.

-9-
one unit each, and added two more units for the seriously injured passengers.

These six total units correlated to a five-level upward departure, resulting in a

guideline range of 78 to 97 months. 11 The court, after carefully reconciling the

advisory guidelines sentence (and its planned upward departure) with the 18

U.S.C. § 3553(a) sentencing factors, imposed a sentence of 96 months for each of

11
The sentencing court considered each of the four grouped counts as
individual “pseudo-counts.” Each of those “pseudo-counts” would result in an
offense level of 23: Although the specific offense characteristic enhancement for
the number of aliens transported (§ 2L1.1(b)(2)) drops out, the recklessness
enhancement provides for a bump to at least level 18 regardless. See U.S.S.G. §
2L1.1(b)(5). And the fact that Munoz’s conduct resulted in the death of “any
person” for each of those four “pseudo-counts” adds 8 levels to that level 18. See
U.S.S.G. § 2L1.1(b)(6). Munoz’s acceptance of responsibility drops that level
three notches, see U.S.S.G. § 3E1.1, resulting in a final offense level of 23 for
each of the four “pseudo-counts.” Treating each of those “pseudo-counts” as a
Group for purposes of § 3D1.4, this adds up to four units because each offense
Group is “equally serious.” U.S.S.G. § 3D1.4(a).
The court then added “pseudo-counts” for each of the two seriously injured
passengers. The base offense level for Munoz’s offense relating to these two
passengers would be 12. See U.S.S.G. § 2L1.1(a)(2). The § 2L1.1(b)(5)
recklessness increase again elevates the offense level to 18. Section 2L1.1(b)(6)
provides for a four-level bump if the victim suffered “Serious Bodily Injury” and
a six-level bump if the person suffered “Permanent or Life-Threatening Bodily
Injury.” Even using the lesser of these increases, the resulting offense level
would be 22. Again, Munoz’s contrition drops this down three levels to 19. As
such, each of the two “pseudo-counts” for seriously injured passengers would
count as one unit under § 3D1.4(a) because each of those “Groups” is only “4
levels less serious” than the “highest offense level” Group.
Altogether, the sum is six units. Section 3D1.4 instructs that if calculations
result in “[m]ore than 5” units to “add 5 levels” to the offense level. Returning
from the world of “pseudo-counts” to Munoz’s actual offense level (23), this five-
level upward departure would result in an offense level of 28. The court
combined this offense level with Munoz’s criminal history category of I and
arrived at a range of 78 to 97 months’ imprisonment.

- 10 -
the four counts, to be served concurrently. The sentencing court’s memorandum

opinion and order, issued December 11, 2006, tracks the analysis announced by

the court during the sentencing hearing.

II. DISCUSSION

After United States v. Booker, 543 U.S. 220, 260-62 (2005), we review

sentences using the rubric of reasonableness, as informed by the 18 U.S.C. §

3553(a) sentencing factors. See Gall v. United States, 128 S. Ct. 586, 594 (2007).

The Supreme Court has clarified that reasonableness review amounts to an abuse

of discretion standard of review, see id., and that this standard applies

“[r]egardless of whether the sentence imposed is inside or outside the Guidelines

range,” id. at 597.

A. Munoz’s Challenge to the § 2L1.1(b)(5) Enhancement

Munoz advances two interrelated arguments that the § 2L1.1(b)(5)

adjustment was inapplicable. First, he disputes certain factual findings on which

the district court predicated its holding; second, he asserts that the district court

erred in holding, as a matter of law, that his conduct was within the scope of the

recklessness enhancement.

1. Standard of Review

When evaluating the district court’s interpretation and application of the

Sentencing Guidelines, we review legal questions de novo and factual findings for

clear error, “giving due deference to the district court’s application of the

- 11 -
guidelines to the facts.” United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir.

2006) (quotation omitted); see also United States v. Todd, 515 F.3d 1128, 1135

(10th Cir. 2008). A clearly erroneous finding is one that “is simply not plausible

or permissible in light of the entire record on appeal.” United States v.

McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003) (quoting United States v.

Torres, 53 F.3d 1129, 1144 (10th Cir. 1995)). 12

2. Merits
a. Munoz’s challenges to the district court’s factual findings

Before addressing § 2L1.1(b)(5)’s ambit, we must first consider Munoz’s

contention that the sentencing court clearly erred with respect to three factual

findings that relate to the § 2L1.1(b)(5) enhancement. 13

First, the sentencing court found the Suburban’s middle-row “lap belts were

tucked behind the seat such that they could not be accessed or used by the

passengers.” In so finding, the court credited Deputy Ritch’s testimony regarding

12
The government bears the burden of proving each element of a sentencing
enhancement. United States v. Forsythe, 437 F.3d 960, 963 (10th Cir. 2006)
(quoting United States v. Campbell, 372 F.3d 1179, 1183 (10th Cir. 2004)).
Accordingly, the “government must prove by a preponderance . . . any findings
necessary to support a sentence enhancement.” United States v. Tindall, 519 F.3d
1057, 1063 (10th Cir. 2008).
13
Munoz challenged only one factual aspect of the PSR: its statement that
the seatbelt of the middle seat in the middle row was inaccessible or inoperable.
The sentencing court accepted the remainder of the PSR’s factual findings. See
Fed. R. Crim. P. 32(i)(3)(A). However, the PSR did not include the other factual
findings – at least in the way Judge Armijo framed them – that Munoz challenges
here.

- 12 -
the seatbelts’ accessibility and discounted the testimony of the Federal Public

Defender’s investigator, Maclovia Guardiola. Munoz disputed this matter below,

triggering the judge’s fact-finding and explanatory duties under Federal Rule of

Criminal Procedure 32(i)(3)(B). 14 Here, Munoz objects only to the result of the

fact-finding. In support of his objection, Munoz offers photographic evidence

that he believes evinces the court’s clear mistake regarding the seatbelt.

We, however, do not believe that the court clearly erred. Whereas Ritch

inspected the Suburban on the morning of the crash, Guardidiola’s investigation

took place nine months later. As Guardidiola admitted on the stand, ample

evidence suggested that the Suburban’s condition had changed during that time.

Moreover, Munoz’s photographic evidence is ambiguous. Because Munoz’s

14
At the court’s request, Ritch reviewed his testimony on the seatbelt issue.
Using the government’s exhibit 4 as an aid, Ritch testified:
If you look at the center of the picture, . . . there is a passenger
compartment or seat there, and then there is the center seat. If you look
right between that gap there, you see where the belt is stuck underneath
the seat and not available to the occupants.
He noted that this was the way he found the seatbelt when he surveyed the
Suburban the morning of the crash. On cross-examination, Munoz’s attorney
asked only about the seatbelt of the middle row’s center seat.
Thus, it is clear from the sentencing hearing’s transcript that the
accessibility of only one seatbelt was in dispute: the middle seat in the
Suburban’s middle row. As such, we will assume that the district court merely
misspoke when it found that the “lap belts” were tucked behind the seat.
Regardless, the district court noted that her § 2L1.1(b)(5) conclusion did not
depend on her finding regarding the middle row seatbelts: “Even accounting for
the three belts in the middle row, there were still not enough seats or seat belts for
all the vehicle’s occupants.”

- 13 -
photographs do not unequivocally controvert the district court’s conclusion, we

defer to the court’s assessment of the sentencing-hearing testimony. See United

States v. Tibbetts, 396 F.3d 1132, 1136 (10th Cir. 2005) (noting that it is the

province of the district court to evaluate witness credibility, weigh the evidence,

and draw inferences therefrom).

Second, the court found that the Suburban was “substantially overloaded

and overcrowded” because it contained twelve persons instead of eight, its rated

capacity. Further, because of this overcrowding, “[e]ven accounting for the three

seat belts in the middle row, there were still not enough seats or seat belts for all

the vehicle’s occupants.” Munoz challenges the sentencing court’s

characterization of the vehicle as overcrowded, arguing that the government

adduced no evidence regarding the size of Munoz’s passengers. Munoz reasons

that, without this evidence, the court could not have concluded the Suburban was

“overcrowded” in light of the spaciousness of the Suburban’s interior.

Again, we discern no clear error. Regardless of the size of the passengers

and the size of the vehicle’s interior, it is undisputed that Munoz carried twelve in

a vehicle rated for eight. Even after Munoz relegated two passengers to the

cramped rear cargo area, four passengers would have had to sit in each of the two

rear bench seats (which are designed for three passengers apiece). 15

15
Even if we were inclined to agree with Munoz’s semantic distinction
(continued...)

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 Third, the court found that it was “also likely that the overloading of the

vehicle adversely affected its handling or maneuverability . . . .” Munoz asserts

that the sentencing court assumed this fact without adequate support in the record;

Munoz further argues that this was not the type of fact subject to judicial notice

pursuant to Federal Rule of Evidence 201(b).

We agree. There was little evidence, if any, in the record that supports this

assumption. The government’s accident reconstruction expert, Deputy Ritch, did

not explicate any basis for this particular finding. Nor did the government ever

argue the predicate facts for such a finding (such as the vehicle’s center of

gravity, the vehicle’s weight when fully loaded, and the additional weight of the

passengers). Accordingly, in light of the entire record on appeal, this factual

conclusion is clearly erroneous. See McClatchey, 316 F.3d at 1128; see also

Carley v. Wheeled Coach, 991 F.2d 1117, 1126 (3d Cir. 1993) (holding that

“rollover propensities of vehicles” are not matters of common knowledge and

hence “not the kind of readily ascertainable facts that satisfy [Federal] Rule [of

Evidence] 201(b)”). But see United States v. Torres-Flores, 502 F.3d 885, 890

15
(...continued)
between “overloaded” and “overcrowded,” evidence in the record supports the
district court’s finding. Specifically, the government did adduce the ages of
Munoz’s passengers (none of whom were younger than 15); the court could have
deduced the approximate size of the passengers from this information.

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n.8 (9th Cir. 2007) (“Severely overloading a vehicle is likely to make it more

difficult to handle, thereby increasing the likelihood of an accident.”). 16

b. Munoz’s challenge to the district court’s conclusion that his conduct
recklessly created a substantial risk of death or serious bodily injury

The next issue is whether the court’s undisputed factual findings – and

those findings that survive Munoz’s clear error challenge – support the conclusion

that Munoz acted recklessly. We concur with the district court’s decision to

apply the § 2L1.1(b)(5) enhancement.

Section 2L1.1(b)(5) provides for an increase to the defendant’s base offense

level 17 “[i]f the offense involved intentionally or recklessly creating a substantial

risk of death or serious bodily injury to another person . . . .” U.S.S.G. §

2L1.1(b)(5). The guideline’s commentary clarifies 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

16
This factor did not occupy a determinative role in the district court’s
conclusion. It only found that it was “likely” that the overloading “adversely
affected” the handling of the vehicle. Thus, it is apparent that the district court
did not believe that a definitive finding on this factor, nor a quantitative
determination of its effect, were necessary. The other factors, which the district
court did definitively find, more than adequately supported the court’s ultimate
conclusion that the defendant intentionally or recklessly created a substantial risk
of death or bodily injury.
17
As noted above, § 2L1.1(b)(5) requires the court to increase the base
offense level by two or, if the resulting offense level would be under 18, up to
level 18.

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 or vessel, or harboring persons in a crowded, dangerous, or inhumane
condition).

U.S.S.G. § 2L1.1 cmt. n.6 (emphasis added). 18 However, the commentary does

not “foreclose the enhancement’s application to other dangerous conditions.”

United States v. Aranda-Flores, 450 F.3d 1141, 1144 (10th Cir. 2006).

Our § 2L1.1(b)(5) inquiry essentially equates to a totality of the

circumstances test. See Aranda-Flores, 450 F.3d at 1145; see also United States

v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005) (“Defining the contours of this

enhancement is dependent upon carefully applying the words of the guideline in a

case-specific analysis.”). In assessing whether the enhancement was appropriate,

we must focus exclusively on the defendant’s conduct, ignoring the results of that

conduct. See Aranda-Flores, 450 F.3d at 1144.

Although the commentary to § 2L1.1(b)(5) suggests some flexibility in

determining whether a defendant’s conduct warrants the enhancement, §

2L1.1(b)(5) does have bounds. Interpreting this very guideline, we have stated

that “[r]eckless conduct, in the criminal context, is considered a form of

intentional conduct because it includes an element of deliberateness – a conscious

acceptance of a known, serious risk.” Id. at 1145 (quoting United States v.

18
This court may accept “commentary in the Guidelines Manual that
interprets or explains a guideline [as] authoritative unless it violates the
Constitution or a federal statute” or is plainly inconsistent with the guideline.
Stinson v. United States, 508 U.S. 36, 38 (1993).

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Serawop, 410 F.3d 656, 663 n.4 (10th Cir. 2005) (internal quotation marks

omitted and emphasis added). Reckless conduct therefore “necessarily excludes

conduct which is merely negligent.” Id. (quoting Sutton v. Utah State Sch. for the

Deaf & Blind, 173 F.3d 1226, 1238 (10th Cir. 1999)). Moreover, we must

disregard the “baseline risk . . . inherent in all vehicular travel,” delving instead

into whether the defendant’s conduct or his chosen method of transportation

“increase[d] the risk [of] an accident” and whether the method of transportation

exacerbated the risk of death or injury in the event of an accident. Torres-Flores,

502 F.3d at 889-90.

The plain language of the commentary accompanying § 2L1.1(b)(5)

compels us to conclude that Munoz’s conduct warranted the enhancement. In

relevant part, the comment explains that the enhancement applies to conduct such

as, “carrying substantially more passengers than the rated capacity of a motor

vehicle . . . or harboring persons in a crowded, dangerous, or inhumane

condition.” U.S.S.G. § 2L1.1 cmt. n.6 (emphasis added). As the district court

found, Munoz carried substantially more passengers than the rated capacity of the

Suburban. Additionally, even with two people confined to the cargo area, the

passengers in the two middle rows would have had to sit four to a row, an

arrangement the district court considered crowded. Because those rows typically

carry only three passengers, even in the best-case scenario at least two more of

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Munoz’s passengers would have gone without a safety restraint. 19 Therefore, at

least four of Munoz’s passengers lacked a safety restraint, a situation which the

district court rightly regarded as dangerous. 20 The danger was even more

pronounced for the two passengers who Munoz concealed in the rear cargo area.

Munoz’s vehicle was 50% over its capacity, and this left some of its occupants

without seats and more without seatbelts. As such, the plain language of §

2L1.1(b)(5)’s commentary sweeps in Munoz’s conduct.

The cases Munoz relies on are not to the contrary. In Aranda-Flores, this

court held that § 2L1.1(b)(5) enhancement was not warranted where the

defendant, transporting four passengers in a car designed to carry five occupants,

fell asleep after driving for over eight hours straight and crashed the car. Aranda-

Flores, 450 F.3d at 1144-45. We concluded that the defendant’s conduct in that

case did not involve “extreme and obviously dangerous conditions” such as

carrying substantially more passengers than the rated capacity of a vehicle or

placing those passengers in areas without seats or seatbelts. Id.

Somewhat similarly, the Fifth Circuit has held that, without other

“aggravating factors,” merely transporting four aliens in the cargo area of a

19
Indeed, it is possible that none of the passengers in the bench row seats
would have had accessible seatbelts because squeezing four people into a row
typically renders the seatbelt buckles inaccessible.
20
Suffice it to say that traveling the 1850-odd miles from Phoenix to Atlanta
at highway speeds without a seat belt is a hazardous endeavor.

- 19 -
minivan without seatbelts does not warrant the § 2L1.1(b)(5) enhancement. See

Solis-Garcia, 420 F.3d at 516 (“The § 2L1.1(b)(5) enhancement as written . . .

does not extend so far as to increase punishment for offenders simply for

transporting illegal aliens without requiring them to wear seatbelts.”). However,

the Solis-Garcia court noted that, on the facts before it, “it [was] not asserted that

the van was overcrowded, that Solis was undertaking a particularly long and/or

unsafe journey, or that the aliens were subjected to any other risks.” Id. Of

course, the court implied, such circumstances might exacerbate the risk posed by

having passengers ride in the cargo area without seatbelts. Id.

Here, the circumstances include the factors in Aranda-Flores (prolonged

nocturnal driving) as well as the factor in Solis-Garcia (transporting passengers

without seatbelts). Munoz endeavored to drive through the night, attempting to

push through to Atlanta as quickly as possible. 21 As the district court put it,

“[t]he length of this journey and the amount of time [Munoz] was spending

behind the wheel” increased the odds that an accident would occur. Cf. United

States v. Flores-Flores, 356 F.3d 861, 862-63 (8th Cir. 2004) (affirming

enhancement where defendant “voluntarily elected to smuggle eleven individuals .

21
The risks of driving while drowsy – especially at night – are well-
documented. See, e.g., Nat’l Center on Sleep Disorders Research / Nat’l Highway
Traffic Safety Administration, Drowsy Driving and Automobile Crashes,
http://www.nhtsa.dot.gov/people/injury/drowsy_driving1/Drowsy.html (noting
that nocturnal driving and driving for long periods are “chronic predisposing
factors” that have cumulative risk).

- 20 -
. . in an overloaded van on a nonstop two thousand mile trip over interstate

highways” and failed to ensure driver he selected remained awake).

Moreover, Munoz instructed two passengers to lie in the cargo area. This

course of action amplified the harm an accident – if one occurred – would cause.

See United States v. Zuniga-Amezquita, 468 F.3d 886, 890 (5th Cir. 2006)

(stating that § 2L1.1(b)(5) enhancement “is warranted if a method of

transportation exposes aliens to a substantial risk, in the event of an accident, of

death or serious bodily injury”); United States v. Miguel, 368 F.3d 1150, 1155-56

(9th Cir. 2004) (affirming enhancement where defendant’s vehicle carried more

passengers than rated capacity, children were forced to lie down without

restraints, and extreme temperature affected passengers). Cf. United States v.

Rodriguez-Mesa, 443 F.3d 397, 403 (5th Cir. 2006) (upholding enhancement

where defendant transported alien in special compartment in minivan’s console

which required alien to contort his head and body to stay concealed).

Lastly, even with two passengers in the cargo area, the Suburban was so

overloaded that at least two more of Munoz’s passengers lacked safety restraints.

Again, this ratcheted up the potential harm an accident would inflict. See United

States v. Ortiz, 242 F.3d 1078, 1079 (8th Cir. 2001) (concluding that district court

did not clearly err in applying § 2L1.1(b)(5) increase where defendant drove 23

illegal aliens in van equipped to accommodate 14); United States v. Hernandez-

Guardado, 228 F.3d 1017, 1027-28 (9th Cir. 2000) (holding that district court did

- 21 -
not abuse its discretion in imposing recklessness enhancement where defendant

transported 18 passengers in van rated for 15).

As such, this case resembles United States v. Maldonado-Ramires, 384 F.3d

1228 (10th Cir. 2004), where we upheld a § 2L1.1(b)(5) enhancement. There, the

defendant “transported the illegal aliens in a minivan altered to remove the rear

seats and seatbelts, . . . was the only driver on a lengthy trip from Arizona to

Florida, and . . . mandated that the passengers always remain prone on the floor of

the van . . . .” Id. at 1231. Of course, Munoz ordered only two passengers to lie

on the back floor of the Suburban – as opposed to the six occupants who were

similarly situated in Maldonado-Ramires. See id. at 1229. Nevertheless, the

concern was not the crowding of the occupants but the fact that they were

deprived of any ability “to react to any dangerous driving conditions that might

arise during the trip.” Id. at 1231; see also Zuniga-Amezquita, 468 F.3d at 889

(“Transporting aliens in a manner that significantly hinders their ability to exit

the vehicle quickly creates a substantial risk of death or serious bodily injury.”).

Thus, each of the factors present in Maldonado-Ramires is also present here.

The district considered the above-listed factors a “deadly combination” that

Munoz “knew of and was instrumental in creating.” We concur and, as such, both

§ 2L1.1(b)(5)’s commentary and our precedents convince us that we must uphold

the enhancement of Munoz’s offense level.

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 B. Munoz’s Challenge to the Court’s Upward Departure

Munoz advances two arguments at the district court’s five-level upward

departure. First, Munoz claims that Booker removed Jose-Gonzalez’s keystone

and thereby stripped the relevant portions of that case of their precedential value.

Second, Munoz argues that the district court ignored factors that it was required

to consider before departing upward under U.S.S.G. § 5K2.1. We disagree with

both arguments.

1. Standard of Review

Even after Booker, we review upward departures using a four-part test. We

ask, in turn,

(1) whether the factual circumstances supporting a departure are
permissible departure factors; (2) whether the departure factors relied
upon by the district court remove the defendant from the applicable
Guideline heartland thus warranting a departure; (3) whether the record
sufficiently supports the factual basis underlying the departure; and (4)
whether the degree of departure is reasonable.

Wolfe, 435 F.3d at 1295 (quoting United States v. Whiteskunk, 162 F.3d 1244,

1249 (10th Cir. 1998)). Although we apply a “unitary abuse of discretion

standard” to these four prongs, we have specified that the degree of deference to

the district court varies depending on the “essential nature of the question

presented [on appeal] . . . .” Id. (quoting Whiteskunk, 162 F.3d at 1249). That

is, if the question on appeal has the hue of a factual question, we accord the

- 23 -
district court greater deference, whereas we undertake plenary review of questions

that are in essence legal. Id. 22

2. Merits

As a preface, U.S.S.G. § 5K2.0 empowers the sentencing court to depart

where it has identified circumstances “not adequately taken into consideration by

the Sentencing Commission” or where the offense conduct involved a

circumstance “present . . . to a degree substantially in excess of, or substantially

below, that which ordinarily is involved in that kind of offense.” U.S.S.G. §

5K2.0(a)(1) & (a)(3) (emphasis added).

Section 5K2.1 enumerates one such ground for departure: “[i]f death

resulted, the court may increase the sentence above the authorized guideline

range.” U.S.S.G. § 5K2.1. However, “[l]oss of life does not automatically

suggest a sentence at or near the statutory maximum.” Id. Rather, in deciding

whether to depart upwards, the

sentencing judge must give consideration to matters that would
normally distinguish among levels of homicide, such as the defendant’s
state of mind and the degree of planning or preparation. Other
appropriate factors are whether multiple deaths resulted, and the means
by which life was taken. The extent of the increase should depend on
the dangerousness of the defendant’s conduct, the extent to which death
or serious injury was intended or knowingly risked, and the extent to
which the offense level for the offense of conviction . . . already
reflects the risk of personal injury.

22
While we have yet to apply this framework after Gall, we are convinced it
remains valid.

- 24 -
Id.

In Jose-Gonzalez, this court affirmed a district court’s decision to depart

upward, pursuant to U.S.S.G. §§ 5K2.1 – .2, because the applicable guideline for

transportation of aliens, § 2L1.1, did not provide any enhancement where the

offense conduct resulted in multiple deaths or injuries. Jose-Gonzalez, 291 F.3d

at 701-03. Having acknowledged that § 2L1.1 does factor in death or bodily

injury, in the singular, 23 this court continued on to hold that “multiple deaths and

injuries” are valid “grounds for departure.” Id. at 703 (emphasis added). 24

Lastly, the Jose-Gonzalez court held that 18 U.S.C. § 3553(b) foreclosed

the appellant’s reliance on “Congressional hearings, debates, and even directives

to the Commission as establishing what the Commission must have taken into

account.” Id. (underscoring that § 3553(b) barred sentencing courts from delving

into evidence – other than “the sentencing guidelines, policy statements, and

official commentary of the Sentencing Commission” – to decide whether the

Commission adequately accounted for a particular circumstance).

23
Indeed, § 2L1.1(b)(6) mandates: “If any person died or sustained bodily
injury, increase the offense level according to the seriousness of the injury . . . .”
U.S.S.G. § 2L1.1(b)(6). It then provides for increases ranging from two levels
(for “Bodily Injury”) to eight levels (for “Death”). Id. We have read this to mean
that § 2L1.1(b)(6) “makes no distinction between one death or 100.” Jose-
Gonzalez, 291 F.3d at 703.
24
Along the way, the court also rejected the argument that § 2L1.1(b)(2)
(which provides an increase for transporting multiple unlawful aliens)
incorporated multiple deaths and injuries. Jose-Gonzalez, 291 F.3d at 702.

- 25 -
 Here, the sentencing court looked to U.S.S.G. § 5K2.1 and the logic of

Jose-Gonzalez to justify its decision to depart upwards. 25 We return now to our

four-part test for determining whether the departure was permissible.

a. Whether the factual circumstances supporting a departure are
permissible departure factors

Because this first issue “is essentially a legal one,” we review it de novo.

Jose-Gonzalez, 291 F.3d at 701. The district court invoked Jose-Gonzalez as

authority to depart upwards in light of the multiple deaths and injuries inflicted

by Munoz’s accident. The issue is whether Booker’s removal of § 3553(b)(1)

enervates Jose-Gonzalez’s holding regarding departure factors.

On appeal, Munoz adduces the same type of evidence – namely, indications

that Congress and the Sentencing Commission considered this very issue – that

the Jose-Gonzalez court rejected because of § 3553(b). However, because Booker

excised § 3553(b)(1), see Booker, 543 U.S. at 259, Munoz contends the door is

25
Although it omitted any explicit reference to U.S.S.G. § 5K2.2, the court
likely considered this section as well. It provides:
If significant physical injury resulted, the court may increase the
sentence above the authorized guideline range. The extent of the
increase ordinarily should depend on the extent of the injury, the degree
to which it may prove permanent, and the extent to which the injury
was intended or knowingly risked. When the victim suffers a major,
permanent disability and when such injury was intentionally inflicted,
a substantial departure may be appropriate. If the injury is less serious
or if the defendant (though criminally negligent) did not knowingly
create the risk of harm, a less substantial departure would be indicated.
In general, the same considerations apply as in § 5K2.1.
U.S.S.G. § 5K2.2.

- 26 -
now open for him to introduce this evidence to show that U.S.S.G. § 5K2.0

disallows departure on these grounds. 26

Munoz offers a snapshot of the congressional history driving the

Sentencing Commission’s treatment of alien transportation offenses. Specifically,

Munoz highlights portions of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, § 203, 110 Stat. 3009, wherein

Congress instructed the Commission to “consider whether any other aggravating

or mitigating circumstances warrant upward or downward sentencing

adjustments.” Id. at 3009-557. As Munoz notes, the Commission incorporated

Congress’s concerns into amendments to § 2L1.1, including the § 2L1.1(b)(5)

reckless endangerment enhancement and the § 2L1.1(b)(6) enhancement for

conduct resulting in death or serious bodily injury. See U.S.S.G. App. C, amend.

543.

In light of these amendments, Munoz concludes that the Commission

“[p]resumably . . . complied with Congress’ directive,” full stop. According to

Munoz, the Commission must have weighed, and in the end rejected, the

possibility of recommending upward departure for multiple deaths. Munoz

26
Booker, an intervening Supreme Court precedent, empowers us to
reconsider certain aspects of Jose-Gonzalez. Cf. United States v. Torres-Duenas,
461 F.3d 1178, 1183 (10th Cir. 2006) (“[A]bsent en banc review or intervening
Supreme Court precedent, we cannot overturn another panel’s decision.”
(emphasis added)).

- 27 -
augments this argument by offering the Commission’s publication (for public

comment) of a proposed adjustment that would account for multiple deaths, see

69 Fed. Reg. 2169, 2171 (Jan. 14, 2004); as Munoz notes, the Commission never

adopted the proposed adjustment.

Far from helping him, the Commission’s proposal undercuts Munoz’s

claim. Not only does the proposal reveal that the Commission believed that its

guidelines do not adequately take into account the multiple deaths circumstance,

the proposal also propounds the very same procedure for taking multiple deaths

into account that the district court followed in this case. Indeed, the proposed

amendment to § 2L1.1 would have added a “[s]pecial [i]nstruction” mandating

that “[i]f the offense involved the death of more than one alien, Chapter Three,

Part D (Multiple Counts) shall be applied as if the death of each alien had been

contained in a separate count of conviction.” Id. By invoking § 3D1.1 et seq.,

the Commission’s proposal tracks the procedure affirmed by this court in Jose-

Gonzalez and followed by the district court in this case.

Munoz is correct that the Commission considered the procedure explained

in Jose-Gonzalez and has yet to adopt the approach formally. This does not

mean, however, that the Commission thought the Guidelines, as currently

constituted, cover the issue. “[T]he Commission’s awareness” of this topic “does

not compel the conclusion that the Guidelines address the issue of multiple deaths

or injuries” adequately. Jose-Gonzalez, 291 F.3d at 703. Rather, as this court has

- 28 -
noted, the Commission occasionally opts to “await developments in the

sentencing courts” before officially sanctioning an enhancement by placing it in

the guidelines. Id. at 703 (citing U.S.S.G. ch. 1, pt. A, intro. comment 4(b)).

Even though Booker opened the door to evidence regarding the Sentencing

Commission’s consideration of this issue, we are convinced that Jose-Gonzalez

remains good law. Thus, the district court did not err in deciding that the

multiple deaths and injuries precipitated by Munoz’s accident were permissible

departure factors.

b. Whether the departure factors relied upon by the district court remove
the defendant from the applicable guidelines heartland thus warranting
departure

This second prong commingles factual and legal questions. In Jose-

Gonzalez, we clarified that “the determination of the heartland is a legal matter to

the extent that it relies on interpretation of Guidelines language but a factual

matter to the extent it relies on experience with the type of offense involved.”

Jose-Gonzalez, 291 F.3d at 704. Having laid out this distinction, the Jose-

Gonzalez court concluded that the issue there – whether the number of deaths and

injuries resulting from the offender’s transportation of aliens warranted a

departure – was “one on which we should defer to the district court.” Id. As this

case is on all fours with Jose-Gonzalez, we apply the abuse of discretion standard.

While U.S.S.G. § 2L1.1(b)(6) takes into account the fact that a person died,

here, four of Munoz’s passengers perished. The accident left another passenger

- 29 -
without a leg, caused another passenger serious head trauma, and put another

passenger in a coma. In light of this tragic toll, we hold that the district court did

not abuse its discretion in deciding that Munoz’s case was outside the bounds of

the “typical cases embodying the conduct that [the] guideline describes.”

U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b).

c. Whether the record sufficiently supports the factual basis underlying the
departure

Typically, we review this issue for clear error. Jose-Gonzalez, 291 F.3d at

704. Munoz, however, does not dispute the district court’s findings regarding the

deaths and injuries that resulted from the accident.

d. Whether the degree of departure is reasonable

Our “review of the degree of the district court’s departure is ‘deferential,’”

Wolfe, 435 F.3d at 1303 (quoting Whiteskunk, 162 F.3d at 1253); see also United

States v. Smart, 518 F.3d 800, 807 (10th Cir. 2008) (noting that Gall forbids

application of “heightened standard of review to sentences outside the Guidelines

range”). As such, we curtail our consideration, looking only at

the district court’s proffered justifications [for the departure], as well
as such factors as: the seriousness of the offense, the need for just
punishment, deterrence, protection of the public, correctional treatment,
the sentencing pattern of the Guidelines, and the need to avoid
unwarranted sentencing disparities.

Wolfe, 435 F.3d at 1303 (quoting United States v. Martinez, 418 F.3d 1130, 1133

(10th Cir. 2005)). In justifying its departure, the sentencing court must articulate

- 30 -
both factual bases for the departure and its “reasons for the degree of departure.”

Jose-Gonzalez, 291 F.3d at 705. While “we do not require the district court to

justify the degree of departure with mathematical exactitude, . . . we do require

the justification to include some method of analogy, extrapolation or reference to

the sentencing guidelines.” Wolfe, 435 F.3d at 1305 (quoting Whiteskunk, 162

F.3d at 1254).

Here, the sentencing court “[a]nalogiz[ed] to other guidelines,” thereby

employing a “primary method by which district courts may justify the

reasonableness of their departure.” United States v. Neal, 249 F.3d 1251, 1258

(10th Cir. 2001). Indeed, the court, by adopting the Jose-Gonzalez methodology,

extrapolated from U.S.S.G § 3D1.4. Additionally, the court explained its decision

to employ this methodology by noting that the Commission’s justification for the

grouping rules “is that all such offenses share the same single victim – the

societal interest in controlling immigration.” Jose-Gonzalez, 291 F.3d at 707.

However, “[w]hen . . . the gist of the offense is injury to persons, the offense

against each human victim belongs in a different group.” Id. Therefore, the

upward departure was warranted because of the court’s concern for human safety

and the sanctity of life. Because the pertinent portion of Jose-Gonzalez remains

valid, we cannot find fault with either the district court’s rationale for the

departure or the degree of that departure.

- 31 -
 Lastly, Munoz challenges one additional aspect of the court’s process. He

claims that the court, while relying on § 5K2.1, neglected to discuss on the record

the factors delineated in that section. The district court did not expressly address

“the defendant’s state of mind and the degree of planning or preparation,”

U.S.S.G. § 5K2.1, but the district court did expound on another “appropriate

factor[],” id. Specifically, the district court discussed the fact that “multiple

deaths resulted” in detail. Id. In the Fourth Circuit case that Munoz relies on, the

sentencing court had provided no guidance as to its rationale for departing upward

pursuant to § 5K2.1 and had “failed to consider any of the aforementioned

factors.” See United States v. Terry, 142 F.3d 702, 709 (4th Cir. 1998) (emphasis

added). Thus, Terry is distinguishable and Munoz’s final argument is unavailing.

III. CONCLUSION

As discussed above, the sentencing court correctly calculated his advisory

guidelines sentence, and hitched its upward departure to a method ratified by

Jose-Gonzalez. The court then scrutinized that amended range in light of the §

3553(a) factors. The court’s care in crafting this particular sentence is evident.

With the minor exception noted above, we concur with the court’s rationale and

result. As such, we AFFIRM Munoz’s sentence.

- 32 -