FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50898
Plaintiff-Appellee,
v. D.C. No.
CR-05-00620-BTM
CARLOS TORRES-FLORES,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
December 5, 2006—Pasadena, California
Filed September 4, 2007
Before: Stephen Reinhardt, Alex Kozinski and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge Ikuta
11441
11444 UNITED STATES v. TORRES-FLORES
COUNSEL
Matthew C. Shaftel and Vincent J. Brunkow, Federal Defend-
ers of San Diego, Inc., San Diego, California, for the
defendant-appellant.
Carol C. Lam, United States Attorney for the Southern Dis-
trict of California, San Diego, California; Roger W. Haines,
Jr., Assistant United States Attorney, San Diego, California;
Christopher P. Tenorio, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
UNITED STATES v. TORRES-FLORES 11445
OPINION
KOZINSKI, Circuit Judge:
We address whether the district court erred in refusing to
give a lesser-included-offense instruction to the jury, and
whether defendant was eligible for a sentencing enhancement
pursuant to U.S.S.G. § 2L1.1(b)(5) (2005)1 for transporting an
alien in a manner creating a “substantial risk of death or seri-
ous bodily injury.”
Facts
Carlos Torres-Flores drove up to the San Ysidro Port of
Entry in an extended-cab pickup on March 23, 2005.
Although he told the border inspector he had nothing to
declare, the inspector became suspicious and proceeded to
investigate. When the inspector opened the driver’s side door,
he saw a “big hump” in the carpet behind the back seat. That
“hump” turned out to be Fortino Marquez-Cruz, an alien who
lacked authorization to enter the United States. Defendant was
arrested and charged with bringing an unauthorized alien to
the United States without presenting him for inspection at the
port of entry, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). He
was convicted and sentenced to 30 months imprisonment.
On appeal, defendant challenges the district court’s deci-
sion not to give a lesser-included-offense instruction and its
decision, at sentencing, that defendant was eligible for an
enhancement pursuant to U.S.S.G. § 2L1.1(b)(5) (2005).2
1
This provision is currently codified at U.S.S.G. § 2L1.1(b)(6) (2006).
2
Defendant also claims that the district court erred in refusing to give
an instruction on derivative citizenship. Because the record contains less
than a scintilla of evidence that Marquez-Cruz was a derivative citizen, we
cannot conclude that the district court abused its discretion in refusing to
give the proffered instruction. United States v. Wofford, 122 F.3d 787, 789
(9th Cir. 1997).
11446 UNITED STATES v. TORRES-FLORES
Analysis
[1] 1. Section 1324(a)(2) makes it both a felony and a mis-
demeanor to knowingly or recklessly bring to the United
States “an alien [who] has not received prior official authori-
zation to come to, enter, or reside in the United States.”
Whether the crime is a misdemeanor, punishable by no more
than one year imprisonment, or a felony, punishable by up to
15 years imprisonment, depends on the existence of certain
aggravating factors laid out in subsections
1324(a)(2)(B)(i)-(iii). In addition to the elements specifically
listed in the statutory text, we have held that the felony
offense contains an implied specific intent element, namely
that defendant have acted with intent to “violate immigration
laws.” United States v. Barajas-Montiel, 185 F.3d 947,
952-53 (9th Cir. 1999); see also United States v. Nguyen, 73
F.3d 887, 894 n.4 (9th Cir. 1995) (noting that when criminal
intent is an implied element of a crime it “is no less an ele-
ment of the offense here than if it had been expressly pro-
vided for in the statute”).
[2] Defendant claims that the district judge erred in refus-
ing to instruct the jury that it could find defendant guilty of
a misdemeanor offense under section 1324(a)(2)(A) while
acquitting him of a felony offense under section
1324(a)(2)(B). A defendant is entitled to a lesser-included
instruction if he shows that: 1) “the offense on which instruc-
tion is sought is a lesser-included offense of that charged” and
2) that the “jury rationally could conclude that the defendant
was guilty of the lesser-included offense but not of the great-
er.” United States v. Pedroni, 958 F.2d 262, 267-68 (9th Cir.
1992).3 Everyone agrees that the misdemeanor offense here
3
We have yet to resolve whether a defendant’s right to a lesser-included
instruction in a noncapital case springs solely from Fed. R. Crim. P. 31(c)
or also from the Fifth Amendment Due Process Clause. Compare Keeble
v. United States, 412 U.S. 205, 208 (1973) (noting the federal common
law and Rule 31(c) provide a right to such instruction), with Beck v. Ala-
UNITED STATES v. TORRES-FLORES 11447
contains all of the elements of the felony, minus the specific
intent requirement and the aggravating factors, and is there-
fore a lesser included within the greater felony offense. The
parties dispute whether the district court abused its discretion
in concluding that a rational jury could not have convicted
defendant of the lesser offense while acquitting as to the
greater. See United States v. Naghani, 361 F.3d 1255, 1262
(9th Cir. 2004) (after we’ve determined that the charged
offense contains all the elements of a lesser offense, we
review the decision not to give a lesser-included instruction
for abuse of discretion).
On this record, a rational jury could not have doubted that
the statutory aggravating factor referenced in the indictment
was present—that the alien was “not upon arrival immediately
brought and presented to an appropriate immigration officer
at a designated port of entry.” See 8 U.S.C.
§ 1324(a)(2)(B)(iii). The primary inspector at the port of
entry, Agent Gibbs, testified that defendant failed to present
Marquez-Cruz for inspection, an account backed up by the
referral slip Gibbs filled out before sending defendant to sec-
ondary. Although defendant attacked the credibility of the
agent on other grounds, defendant never contested that
Marquez-Cruz was not presented to the agent for inspection.
bama, 447 U.S. 625 (1980) (holding that a defendant in a capital case has
a due process right to a lesser-included instruction when the facts would
allow the jury to impose a life sentence rather than death). Beck left open
whether the due process right extends to defendants in noncapital cases.
447 U.S. at 638 n.14 (“We need not and do not decide whether the Due
Process Clause would require the giving of such instructions in a noncapi-
tal case.”). While defendant here asserts a right under both provisions, we
also need not resolve the issue, because, to the extent the Due Process
Clause affords defendants greater protections than Rule 31(c), it would not
affect the outcome of this case. The due process right recognized in Beck
applies only “when the evidence would have supported” conviction of the
lesser offense but acquittal of the greater. 447 U.S. at 627 (internal quota-
tion marks omitted). For the reasons we explain below, such is not the
case here. See pages 11448-50 infra.
11448 UNITED STATES v. TORRES-FLORES
When proposed instructions were being discussed, counsel for
defense did not object to the district judge’s observation that
“there is no dispute” as to this element. And, in closing argu-
ment, defense counsel conceded that Agent Gibbs “found”
Marquez-Cruz behind the back seat. Indeed, any assertion that
defendant had presented the alien for inspection would have
contradicted Torres-Flores’ entire defense—that he was a
“blind mule” who drove to the port of entry unaware that
Marquez-Cruz was hiding behind his back seat.
[3] The only real question is whether the jury could have
convicted defendant of the misdemeanor without also finding
that he acted with the intent that would convert the crime into
a felony. Barajas-Montiel defined the implicit intent element
in a section 1324(a)(2)(B) offense as a specific intent “to vio-
late immigration laws.” 185 F.3d at 953. In applying this
requirement, we have held that the government need not
prove that defendant intended to violate Title 8 of the U.S. Code.4
In a later smuggling case, United States v. You, 382 F.3d 958
(9th Cir. 2004), we held that acting with “the purpose of
avoiding [the aliens’] detection by immigration authorities” is
“synonymous with having acted with necessary intent as
required in Barajas-Montiel.” Id. at 966 (alterations in origi-
nal) (internal quotation marks omitted).
[4] In order to convict defendant of either the misdemeanor
or the felony, the jury had to find that defendant “knowingly”
brought Marquez-Cruz to the United States—in other words,
that he was aware of Marquez-Cruz’s presence in the vehicle.5
4
Such an element would be a rare novelty in our legal system. Just as
“ignorance of the law or a mistake of law is no defense to criminal prose-
cution,” Cheek v. United States, 498 U.S. 192, 199 (1991), knowledge of
the law is almost never an element of a crime.
5
The jury was specifically instructed that it could convict only if it
found that defendant “knowingly brought Fortino Marquez-Cruz to the
United States.” Although the text of the statute does not contain an express
mens rea element that applies to the act of “bringing” an alien to the
UNITED STATES v. TORRES-FLORES 11449
As already noted, there was no dispute that defendant did not
present Marquez-Cruz for inspection. According to You, this
is tantamount to an intent to violate the immigration laws.
Torres-Flores argues, however, that he may have had a differ-
ent motive for failing to present Marquez-Cruz for inspection,
namely that Marquez-Cruz may have wanted to avoid con-
fronting law enforcement officers for a non-immigration-
related reason, such as a fear that he would be found to have
violated probation. There is no support in the record for any
such finding. In any event, that Marquez-Cruz may have had
a non-immigration-related reason for wishing to avoid detec-
tion does not change the fact that Torres-Flores knowingly hid
him from immigration authorities and thus (according to You)
acted with the intent to violate the immigration laws. Regard-
less of defendant’s subjective reasons for failing to present
Marquez-Cruz for inspection, a rational jury could not have
found that defendant lacked the requisite intent while also
finding that he knowingly helped Marquez-Cruz evade detec-
tion by immigration authorities. The district court therefore
did not abuse its discretion in denying the lesser-included-
offense instruction.
2. Defendant also challenges the district court’s determi-
nation that the offense involved “a substantial risk of death or
serious bodily injury to another person,” a determination that
resulted in a 6-level increase in his offense level and more
than doubled the applicable Guidelines range from 12-18
months to 30-37 months. See U.S.S.G. § 2L1.1(b)(5) (2005).
United States, we’ve recognized that section 1324(a)(2) “provides for
criminal penalties for any person who knowingly brings an ‘unauthorized’
alien into the United States.” Gete v. I.N.S., 121 F.3d 1285, 1288 n.2 (9th
Cir. 1997) (emphasis added). To construe the prefatory clause of section
1324(a)(2) otherwise would render the misdemeanor a strict liability
crime, a species of offense that is heavily disfavored in our legal system.
See Dennis v. United States, 341 U.S. 494, 500 (1951) (“The existence of
a mens rea is the rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence.”).
11450 UNITED STATES v. TORRES-FLORES
The extended-cab pickup truck defendant was driving had
been modified to create additional space for a passenger to
hide behind the back seat. Border agents discovered the alien
passenger, Marquez-Cruz, hiding in this makeshift compart-
ment.
[5] We start with the observation that, although vehicular
travel is generally quite safe, it is not risk-free. Every passen-
ger traveling on our highways faces a small, but non-trivial,
risk of death or injury.6 This baseline risk is inherent in all
vehicular travel and must therefore be disregarded in deter-
mining whether the offense was committed in a manner that
involved a “substantial risk of death or serious bodily injury
to another person.” We focus on the ways in which the
method of transporting the alien increased the risk of death or
injury beyond that faced by a normal passenger traveling on
our streets and highways. The risk could be increased in a
number of ways: (1) The driver could increase the likelihood
of an accident by taking a dangerous route (e.g., off-road) or
driving in a dangerous manner (e.g., recklessly or drunk); (2)
the method of transportation could increase the likelihood of
an accident (e.g., a severely overloaded vehicle); (3) the
method of transportation could increase the risk of an injury
even in the absence of an accident (e.g., passengers trans-
ported with insufficient ventilation or subject to injury from
moving mechanical parts); or (4) the method of transportation
could increase the risk that an accident, if it should occur,
would cause injury or death (e.g., passengers transported in a
manner that makes them more likely to be injured by crum-
pled metal or shattered glass than if they had been seated nor-
mally).
[6] The district court found an increase in only the last of
6
Fifteen of every 100,000 Americans died in a car crash in 2005; 911
more were injured. Nat’l Highway Traffic Safety Admin., Traffic Safety
Facts 2005 verso (2006), available at http://www-nrd.nhtsa.dot.gov/Pubs/
TSF2005.pdf.
UNITED STATES v. TORRES-FLORES 11451
those four risks, namely, that if an accident occurred,
Marquez-Cruz was more likely to be hurt. The district court
didn’t find that defendant’s conduct increased the likelihood
of an accident; and the court specifically found that Marquez-
Cruz’s placement didn’t increase the risk of injury absent an
accident: “If there’s no collision, there’s no problem.”7 We
must therefore decide whether the increased risk of injury in
case of an accident was significant enough to merit a 6-level
enhancement in the offense level.
In making this determination, we accord “considerable
weight” to the Guidelines’ application notes, United States v.
Fine, 975 F.2d 596, 599 n.4 (9th Cir. 1992) (en banc), which
provide examples that give some indication of what kinds of
risks substantially increase a concealed passenger’s chances
of injury or death over and above the normal danger of vehic-
ular travel. What is notable about these examples—
“transporting persons in the trunk or engine compartment of
a motor vehicle, carrying substantially more passengers than
the rated capacity of a motor vehicle”—is that in each, unlike
here, the means of travel either exacerbates the likelihood of
an accident, subjects the passenger to a risk of injury even
during an accident-free ride, or both.8
7
The dissent suggests that the district court found that Marquez-Cruz
was subject to injury even in the absence of an accident because of the
compartment’s sharp metal edges, see Dissent at 11454, 11461, but this
contradicts the district court’s findings quoted in the text. Moreover, the
district court’s discussion makes clear that it was concerned only with the
dangers Marquez-Cruz would have faced if defendant had crashed the
truck: “[I]f there’s a collision . . . what’s going to happen? . . . Metal
bends. Things happen. Fires occur. Explosions occur. And this person . . .
can’t get out . . . .”
8
Riding in the trunk exposes the passenger to the risk of suffocation or
heat stroke. See U.S. Dep’t of Transp., Motor Vehicle Trunk Entrapment
Report to Congress (2000), available at http://www.nhtsa.dot.gov/cars/
problems/studies/Trunk/#ter3 (“The combination of high temperature,
humidity, and poor ventilation all contribute to the extreme danger of car
trunks.”). Passengers stowed in engine compartments presumably face
similar harms in addition to the risk of being injured by engine heat or
moving components. Severely overloading a vehicle is likely to make it
more difficult to handle, thereby increasing the likelihood of an accident.
11452 UNITED STATES v. TORRES-FLORES
[7] Consistent with the examples in the application notes,
our decisions have upheld § 2L1.1(b)(5) enhancements for
vehicular travel only when the circumstances increased the
likelihood of an accident or the chance of injury without an
accident. United States v. Hernandez-Guardado, 228 F.3d
1017, 1027-28 (9th Cir. 2000), involved overloaded vans with
passengers lying unrestrained on the floorboards. United
States v. Miguel, 368 F.3d 1150, 1152 (9th Cir. 2004),
involved the transportation of three individuals in the trunk of
a car in 100-degree heat. In United States v. Ramirez-
Martinez, 273 F.3d 903, 916 (9th Cir. 2001), overruled on
other grounds by United States v. Lopez, 484 F.3d 1186 (9th
Cir. 2007) (en banc), defendant was found to have transported
“twenty people in a dilapidated van without seats or seat
belts.”
This case is most similar to United States v. Dixon, 201
F.3d 1223 (9th Cir. 2000), which involved the transportation
of aliens in the hatchback area of a vehicle. Id. at 1233. We
recognized that a hatchback—like the makeshift compartment
in this case—is similar to the application note’s example of a
trunk in that neither is designed to transport people. A passen-
ger riding there is therefore more likely to be injured in the
event of an accident than someone riding in the same car who
is securely strapped into a passenger seat. Nonetheless, we
found that the incremental danger posed by riding in a hatch-
back was not so “obvious” as to render the overall danger
“substantial” without additional evidentiary support.
[8] In addition to the application notes and our caselaw, we
also consider the magnitude of the enhancement. Section
2L1.1(b)(5) raised defendant’s offense level to 18—a 6-level
increase. That’s greater than the 2-level increase for reck-
lessly endangering others while fleeing from law enforce-
ment, see U.S.S.G. § 3C1.2 (2005), greater than the 2-level
increase for using a minor in the commission of the offense,
see id. § 3B1.4, greater than the 4-level increase for leading
a criminal conspiracy, see id. § 3B1.1(a), and greater than the
UNITED STATES v. TORRES-FLORES 11453
4-level increase for causing death by possessing biochemical
weapons, see id. § 2M6.1. The magnitude of the increase sug-
gests that this enhancement is meant to apply only when the
additional risk to the concealed passenger is significantly
greater than the risks normally borne by ordinary passengers
during normal vehicular travel. Here there was some addi-
tional risk, but only in the highly unlikely event of an accident.9
We do not think that the incremental risk was significant
enough to warrant doubling or even tripling defendant’s sen-
tence.10
The district court erred in applying the Guidelines to the
facts of this case.11
***
[9] Because a rational jury could not have convicted defen-
dant of the lesser misdemeanor offense outlined in 8 U.S.C.
§ 1324(a)(2)(A), without also convicting him of the felony
9
The probability of defendant getting in an accident was probably close
to 0.03%. We calculate that probability based on the defendant’s plan to
drive 135 miles from the San Ysidro checkpoint to Marquez-Cruz’s desti-
nation in Los Angeles, and the frequency of accidents in March 2005-203
crashes for every 100 million miles driven. Nat’l Highway Traffic Safety
Admin., n.6 supra, at 44.
10
The district court sentenced defendant to the bottom of the enhanced
sentencing range of 30-37 months. The bottom of the un-enhanced sen-
tencing range was 12 months.
11
We recognize that there is an intracircuit conflict regarding how we
review application of the Guidelines to the facts. Compare United States
v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005) (“This court reviews . . .
the district court’s application of the Sentencing Guidelines to the facts of
this case for abuse of discretion.”), with United States v. Williamson, 439
F.3d 1125, 1137 n.12 (9th Cir. 2006) (“We review the interpretation and
application of the Guidelines de novo.”); see also United States v. Staten,
466 F.3d 708, 713 n.3 (9th Cir. 2006) (recognizing the conflict). But
because we would reverse even under the more deferential abuse of dis-
cretion standard, it is unnecessary for us to call the case en banc to resolve
the conflict.
11454 UNITED STATES v. TORRES-FLORES
offense, the district court did not abuse its discretion in refus-
ing to give a lesser-included instruction. But, because we con-
clude that the district court erred in finding that defendant was
subject to a sentencing enhancement under U.S.S.G.
§ 2L1.1(b)(5) (2005), we vacate his sentence and remand for
re-sentencing.
AFFIRMED IN PART, VACATED IN PART AND
REMANDED.
IKUTA, Circuit Judge, concurring in part and dissenting in
part:
I join section one of the majority’s opinion, but dissent
from its holding in section two. The majority’s holding that
the district court abused its discretion in determining that the
U.S.S.G. § 2L1.1(b)(5) enhancement applied to Torres-
Flores’ offense is based on evidence not in the record and
conflicts with our normal procedure for reviewing Guidelines
sentences.
I.
Torres-Flores concealed Marquez-Cruz in a carved-out
compartment located beneath the rear passenger seat of an
extended cab pick-up. Torres-Flores’ counsel estimated that
the rear bench seat, which was placed over Marquez-Cruz’s
body, weighed approximately forty to fifty pounds (not
accounting for the speakers and the child safety seat that
rested on top of the bench seat during Marquez-Cruz’s trans-
portation). The bench seat was not bolted to the floor of the
pick-up and Marquez-Cruz was placed in the compartment
without any restraints. Photographs of the vehicle revealed
protruding metal edges located at the sides of the carved-out
compartment.
UNITED STATES v. TORRES-FLORES 11455
After examining color photographs of the vehicle and hear-
ing extensive argument from the parties, the district court set
forth detailed factual findings, which the majority does not
dispute.
[W]hen you get down to common sense, it’s very
simple: that there was an area that was carved out of
the bottom. It’s not smoothed out. It’s not padded.
There are some edges, and you can’t tell how sharp
the edges are, but there are edges if you look in
Exhibit H, that color photograph, and Exhibit I. The
person is in that compartment. He pulls the rug over
him, and then he pulls the seat back over him. The
seat is not bolted in place. And so moving back and
forth, just the motion of the car runs the risk of the
seat popping out and moving for the very reason that
[the defense] argue[s] that [Marquez-Cruz] can lift
the seat up with great ease. I mean that’s just one
thing.
But one has to look at if there’s a collision, and colli-
sions happen, what’s going to happen? The car is not
going to be—the vehicle’s not going to be in perfect
shape where metal is not going to be bent. Metal
bends. Things happen. Fires occur. Explosions
occur. And this person is in a situation where he
can’t get out unless, even taking the facts in the light
most favorable to [the defense], he pulls the rug back
— assuming he wasn’t injured and his head didn’t
hit one of the sides of the compartment here and he’s
still conscious — he has to pull the rug back, push
the seat up, and then somehow get over the seat. The
seat’s now pushed against the driver’s seat. Then get
out of the vehicle when the clock is ticking and sec-
onds are ticking and this vehicle can explode from a
collision or there’s other fire that happens in colli-
sions. I wouldn’t want to be in that situation.
11456 UNITED STATES v. TORRES-FLORES
Common sense tells me that that’s a dangerous, a
serious risk of personal injury or even death to ride
in a vehicle that way. And I think that’s what’s
meant.
The Dixon case is a really specific case that dealt
with hatchbacks where one could get out very easily.
This is not something that someone can get out to the
degree of speed that one can get out with a hatch-
back. Again, if you look at the pictures, you see that
there is uneven metal, it’s not padded, and the person
is leaned against that uneven metal. And this is a
bad, bad situation. And it is one that the defendant
was aware of. It was his compartment and clearly fits
within intentionally, recklessly creating a sudden
risk of death or serious bodily injury.
The facts are by proof beyond a reasonable doubt.
No one’s really disputing the facts. Whether you
have to force the front seat up or force it are not
really as irrelevant if you don’t have to force it up.
There[ ] are still a lot of obstacles to getting out of
this vehicle in a crash, assuming that one can do it.
[The defense] assume[s] [that in case of an accident,]
. . . the vehicle’s . . . going to be in the same condi-
tion that [it] is in now; it’s not. If it’s from the rear,
especially from the sides, that person is going to be
compressed. His head is going to be pushed against
the compartment without any padding. He’s not
restrained at all. This is not a good situation.
So I hold the six-level increase is appropriate.
The district court’s conclusion is entirely consistent with
the plain language of the Guidelines. Section 2L1.1 addresses
offenses involving the smuggling, transportation, or harboring
of unlawful aliens. Subsection (b)(5) of that provision directs
the sentencing court to increase the defendant’s offense level
UNITED STATES v. TORRES-FLORES 11457
“[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) (2005). Application Note 6
further explains that § 2L1.1(b)(5) applies to “a wide variety
of conduct,” including: (1) “transporting persons in the trunk
or engine compartment of a motor vehicle,” (2) “carrying sub-
stantially more passengers than the rated capacity of a motor
vehicle,” and (3) “harboring persons in a crowded, dangerous,
or inhumane condition.” U.S.S.G. § 2L1.1 cmt. n.6 (2005).1
As the majority recognizes, the plain language of
§ 2L1.1(b)(5) applies to transporting passengers in a way that
“could increase the risk that an accident, if it should occur,
would cause injury or death.” See maj. op. at 11450.
Our case law has echoed the expansive language of the
application note. Our prior decisions have held that “[n]o pre-
cise formula undergirds the determination of what constitutes
substantial risk.” United States v. Carreno, 363 F.3d 883, 890
(9th Cir. 2004), vacated and remanded on other grounds, 543
U.S. 1099 (2005). In this spirit, we have emphasized that dis-
trict courts should “carefully evaluat[e] the cumulative effect
of the interrelated factors supporting the enhancement” and
“assess the degree of risk created by the totality of the defen-
dant’s conduct.” Id. The Fifth Circuit has expressly held that
transporting aliens in a manner that exposes them to a sub-
stantial risk of serious bodily injury in the event of an acci-
dent is sufficient to uphold a § 2L1.1(b)(5) enhancement. See
United States v. Zuniga-Amezquita, 468 F.3d 886, 890 (5th
Cir. 2006).
1
Indeed, the language of Application Note 6 to U.S.S.G. § 2L1.1 is
broad enough to cover the precise conduct in this case. The application
note explains that the “wide variety of conduct” meriting the enhancement
includes “harboring persons in a crowded, dangerous, or inhumane condi-
tion.” U.S.S.G. § 2L1.1 cmt. n.6 (2005). This would include Torres-
Flores’ conduct in concealing Marquez-Cruz in a condition the district
court correctly found to be “dangerous.” See Webster’s New World Col-
lege Dictionary 647 (4th ed. 2005) (defining to “harbor” as “to serve as,
or provide, a place of protection to; shelter or house; conceal or hide”).
11458 UNITED STATES v. TORRES-FLORES
The district court made the common sense determination
that transporting an alien unrestrained by a seatbelt, crammed
into a hidden compartment, and placed under a forty or fifty
pound bench seat which impeded his ability to exit posed seri-
ous dangers in the event of an accident. The conclusion that
Torres-Flores’ conduct created “a substantial risk of death or
serious bodily injury to another person” was undoubtedly cor-
rect.2
II.
The majority overturns the district court’s straightforward
application of the Guidelines on the ground that the likelihood
of an accident was not significant enough to merit a 6-level
enhancement in the offense level. Maj. op. at 11452-53. I dis-
agree with this conclusion for two reasons.
First, the majority bases its conclusion that an accident was
“highly unlikely,” and therefore the district court erred in
applying the enhancement, on the majority’s sua sponte
review of highway statistics that were not part of the record,
and are at best inconclusive. See maj. op. at 11453 & n.9.
Extrapolating from general National Highway Traffic Safety
Administration statistics, the majority derives the surprisingly
precise determination that the likelihood of Torres-Flores get-
ting into an accident “was probably close to 0.03%.” The
majority explains that it “calculate[s] that probability based on
the defendant’s plan to drive 135 miles from the San Ysidro
checkpoint to Marquez-Cruz’s destination in Los Angeles,
and the frequency of accidents in March 2005—203 crashes
for every 100 million miles driven.” Maj. op. at 11453 n.9.
The statistical information provided by the National High-
2
As the majority notes, there is an intracircuit conflict regarding
whether we review the district court’s application of the Guidelines to the
facts of this case de novo or for an abuse of discretion. See maj. op. at
11453 n.11. I would affirm the district court under either standard.
UNITED STATES v. TORRES-FLORES 11459
way Traffic Safety Administration, and the majority’s factual
extrapolation from that information, were not in the record
before the district court and should not affect our review.
Appellate courts generally consider only the “record before
the trial judge when his decision was made.” Kirshner v. Uni-
den Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (inter-
nal quotation marks omitted). Moreover, “[i]t is rarely
appropriate for an appellate court to take judicial notice of
facts that were not before the district court.” Flick v. Liberty
Mut. Fire Ins. Co., 205 F.3d 386, 392 n.7 (9th Cir. 2000).
Even if such traffic statistics were an appropriate subject of
judicial notice, see Fed. R. Evid. 201(b) (requiring that facts
be “not subject to reasonable dispute”), it is inappropriate to
rely on such data where the government has had no notice or
opportunity to respond. Cf. Fed. R. Evid. 201(e) (“A party is
entitled upon timely request to an opportunity to be heard as
to the propriety of taking judicial notice and the tenor of the
matter noticed.”). Moreover, we have previously expressed
doubt about relying on general statistics as proof of an ulti-
mate issue in an individual case. See Haugen v. Brosseau, 351
F.3d 372, 389 (9th Cir. 2003) (relying on general statistics of
the dangers of high-speed car chases was improper, given that
the statistics were not supplied by the parties, or responded to
by the party adversely affected; also noting the Supreme
Court’s rejection of this general statistical approach “to prove
dangerousness in an individual case”).
More important, the results of the majority’s extrapolation
are highly questionable. For example, the majority’s analysis
fails to take into account statistics showing that because
Torres-Flores was a twenty-five year-old male, he was over
36 % more likely to be in a crash than the general population.
Nat’l Highway Traffic Safety Admin., Traffic Safety Facts
2005 98 (involvement rate of 7,354 compared to 5,398). The
majority’s calculation also fails to take into account other fac-
tors that could affect the probability of Torres-Flores getting
into an accident, including the effect of driving a light truck,
driving where the speed limit was 55 miles per hour or higher,
11460 UNITED STATES v. TORRES-FLORES
driving near the city of Chula Vista, and driving in the state
of California. See id. at 17, 51, 148, 176. It is a truism that sta-
tistics can be used to prove anything, and absent specific
information for drivers transporting concealed aliens from
San Ysidro to Los Angeles (information apparently not pro-
vided by the National Highway Traffic Safety Administra-
tion), the statistics relied on by the majority are simply not an
appropriate basis for determining that the district court abused
its discretion.
Second, I question the majority’s analytical approach. The
majority concludes that because the § 2L1.1(b)(5) enhance-
ment resulted in a 6-level increase in defendant’s offense
level, the district court abused its discretion in determining
that the § 2L1.1(b)(5) enhancement was applicable to the facts
of the case. Maj. op. at 11452-53. But our determination as to
whether a district court was correct in applying the law to the
facts should not vary based on the size of the sentencing
enhancement that results from this analysis. Torres-Flores
himself concedes that “the guidelines do not suggest that the
effect of the enhancement in terms of levels of increase to the
base offense level should be factored into the substantive fac-
tual analysis.” Although the disproportionate impact of an
otherwise applicable sentencing factor may raise a need for
additional procedural protections in fact-finding, see, e.g.,
United States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001),
Torres-Flores does not raise this issue. Under our procedure,
if the sentencing factor is applicable by its terms, a court then
turns to consider whether the sentence suggested by the advi-
sory Guidelines is unreasonable in light of the § 3553(a) factors.3
3
We follow “a two-step procedure for reviewing sentences imposed fol-
lowing the date the Supreme Court issued its opinion in Booker.” United
States v. Mix, 457 F.3d 906, 911 (9th Cir. 2006) (citing United States v.
Cantrell, 433 F.3d 1269, 1279-81 (9th Cir.2006)). First, we determine
whether the district court properly considered and applied the applicable
Sentencing Guidelines. Cantrell, 433 F.3d at 1279-81. If the district court
did not err in applying the Sentencing Guidelines, we review the sentence
for reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a).
Cantrell, 433 F.3d at 1280. The majority seemingly conflates these two
steps.
UNITED STATES v. TORRES-FLORES 11461
Here there is no basis to conclude that Torres-Flores’ within-
Guidelines sentence is unreasonable. See Rita v. United
States, ___ U.S. ___ (2007).
The district court correctly applied U.S.S.G. § 2L1.1(b)(5)
in determining that the transportation of Marquez-Cruz in an
unprotected compartment with uncovered metal edges, unre-
strained by a seatbelt, and prevented from ready egress by
forty to fifty plus pounds of material “created a substantial
risk of death or serious bodily injury.” Therefore, I would
affirm.