FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50289
Plaintiff-Appellee,
D.C. No.
v. 3:15-cr-00614-BEN-1
JOSEPH ANTHONY BERNARDO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
March 7, 2016—Pasadena, California
Filed April 13, 2016
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges and Frederic Block,* Senior District Judge.
Opinion by Judge Ikuta
*
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2 UNITED STATES V. BERNARDO
SUMMARY**
Criminal Law
Affirming a sentence for bringing an unlawful alien into
the United States and aiding and abetting, the panel held that
the district court did not err in determining that transporting
a person by strapping her inside a compartment behind a
vehicle dashboard created a substantial risk of death or
serious harm, and therefore did not err in applying a six-level
enhancement pursuant to U.S.S.G. § 2L1.1(b)(6).
COUNSEL
Grant L. Eddy (argued), Chula Vista, California, for
Defendant-Appellant.
Laura E. Duffy, United States Attorney, Peter Ko, Assistant
United States Attorney, Lawrence E. Spong (argued),
Assistant United States Attorney, for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BERNARDO 3
OPINION
IKUTA, Circuit Judge:
Joseph Bernardo appeals the district court’s application of
a six-point upward adjustment to his offense level for
“recklessly creating a substantial risk of death or serious
bodily injury to another person.” U.S.S.G. § 2L1.1(b)(6).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
On February 15, 2015, while Bernardo was waiting in line
at the San Ysidro Port of Entry, a dog alerted to his Ford
Windstar van. An officer conducted an inspection of the
vehicle and found a woman hidden in a compartment behind
the dashboard. A heavy-duty cargo strap around the mid-
section of the woman’s body strapped her in and held her up
in the compartment. After the officer cut the strap with his
knife, the woman climbed out of the compartment. She
appeared alert and unharmed. Upon questioning, she told the
officer that she was a citizen of Mexico and that Bernardo
had agreed to smuggle her into the United States illegally.
The government charged Bernardo with bringing an
unlawful alien into the United States in violation of 8 U.S.C.
§ 1324(a)(2)(B)(iii) and aiding and abetting an offense
against the United States in violation of 18 U.S.C. § 2. He
pleaded guilty to both charges without a plea agreement.
According to the presentence investigation report (PSR),
Bernardo’s violation of 8 U.S.C. § 1324 had a base offense
level of 12. U.S.S.G. § 2L1.1(a)(3). The PSR recommended
that the offense level be increased to 18 under § 2L1.1(b)(6)
4 UNITED STATES V. BERNARDO
of the Guidelines, which requires such an increase if “the
offense involved intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another
person.” According to the PSR, the manner in which the
woman had been smuggled into the United States was “an
inhumane manner in which to transport a person in an area
not meant for human transport and created a substantial risk
of death or serious bodily injury.” The PSR also
recommended a two-level reduction for acceptance of
responsibility under § 3E1.1(a). The resulting total offense
level of 16 corresponded to a Guidelines range of 33 to 41
months, but the PSR recommended a lower sentence of 24
months and a three-year period of supervised release.
Bernardo filed objections to the PSR’s proposed
enhancement under § 2L1.1(b)(6). He argued that the heavy-
duty cargo strap holding the alien “was used to prevent injury
should an accident occur,” that the “alien was not
uncomfortable,” and that she was able to climb out of the
compartment using her own strength.
The district court held a sentencing hearing on June 15,
2015, noting that it had reviewed the PSR’s sentencing
recommendation and the parties’ arguments. At the hearing,
Bernardo’s counsel conceded that strapping the woman in the
dashboard compartment was “extremely serious” and agreed
that it constituted “pretty egregious conduct,” but he argued
that the PSR’s proposed enhancement of the offense level to
18 was improper because transporting an alien in the
dashboard compartment neither increased the risk of an
accident nor substantially increased the alien’s chance of
serious bodily injury or death. The district court rejected this
argument, concluding that being strapped inside a dashboard
was “an extremely precarious position to put an individual in”
UNITED STATES V. BERNARDO 5
and raised a “substantial risk situation.” Accordingly, the
district court imposed the enhancement.
The district court subsequently granted the government’s
motion to decrease the offense level by two levels in light of
Bernardo’s substantial assistance, see U.S.S.G. § 5K1.1,
resulting in an adjusted offense level of 13 with a Guidelines
range of 24–30 months. At a sidebar during the sentencing
hearing, the government moved for a further downward
variance. In consideration of the relevant factors under
18 U.S.C. § 3553, the district court imposed a 16-month
sentence, along with a three-year period of supervised release.
II
On appeal, Bernardo argues that the district court erred in
applying the six-point upward adjustment for “intentionally
or recklessly creating a substantial risk of death or serious
bodily injury to another person” under § 2L1.1(b)(6).
We review the district court’s factual findings for clear
error and its interpretation of the Sentencing Guidelines de
novo. United States v. Smith, 719 F.3d 1120, 1123 (9th Cir.
2013). There is a longstanding intracircuit conflict as to
whether we review the district court’s application of the
guidelines to the facts de novo or for abuse of discretion,
United States v. Sullivan, 797 F.3d 623, 641 n.13 (9th Cir.
2015), but because we would reach the same conclusion here
under either standard, we need not call this case en banc to
resolve the conflict.
“Even though the Guidelines are advisory, they are still
the ‘starting point and the initial benchmark’ for the
sentencing process.” United States v. Ellis, 641 F.3d 411,
6 UNITED STATES V. BERNARDO
415 (9th Cir. 2011) (quoting Kimbrough v. United States,
552 U.S. 85, 108 (2007)). Therefore, we “must first ensure
that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating)
the Guidelines range.” Gall v. United States, 552 U.S. 38, 51
(2007). We interpret the Guidelines as we would binding
federal regulations and interpret the commentary in the
Guidelines like “an agency’s interpretation of its own
legislative rules.” Stinson v. United States, 508 U.S. 36,
44–45 (1993). Thus, the “commentary in the Guidelines
Manual that interprets or explains a guideline is authoritative
unless it . . . is inconsistent with, or a plainly erroneous
reading of, that guideline.” United States v. Martin, 796 F.3d
1101, 1108 (9th Cir. 2015) (quoting Stinson, 508 U.S. at 38);
see also United States v. Jackson, 697 F.3d 1141, 1146 (9th
Cir. 2012).
A
The Guidelines section applicable to Bernardo’s offense
of conviction, § 2L1.1, specifies the base offense level and
enhancements for offenses involving smuggling, transporting,
or harboring an unlawful alien. Section 2L1.1(b)(6) of the
Guidelines provides: “If the offense involved intentionally or
recklessly creating a substantial risk of death or serious
bodily injury to another person, increase by 2 levels, but if the
resulting offense level is less than level 18, increase to level
18.” An offense qualifies for such an enhancement if it meets
the criteria set forth in Note 5 of the Application Notes to the
Guidelines, which states, in pertinent part:
Reckless conduct to which the adjustment
from subsection (b)(6) applies includes a wide
variety of conduct (e.g., transporting persons
UNITED STATES V. BERNARDO 7
in the trunk or engine compartment of a motor
vehicle; carrying substantially more
passengers than the rated capacity of a motor
vehicle or vessel; harboring persons in a
crowded, dangerous, or inhumane condition;
or guiding persons through, or abandoning
persons in, 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. Because the Application Note is
not inconsistent with or a plainly erroneous reading of
§ 2L1.1(b)(6), we defer to its reasoning. Stinson, 508 U.S. at
38. For instance, we have held that the transportation of
aliens in overcrowded vehicles, where the aliens lacked seats
or seatbelts, meets the criteria of “carrying substantially
more passengers than the rated capacity of a motor vehicle
[or] harboring persons in a crowded, dangerous, or inhumane
condition,” which is sufficient to create a substantial risk of
death or serious bodily injury. United States v. Ramirez-
Martinez, 273 F.3d 903, 916 (9th Cir. 2001) (quoting
U.S.S.G. § 2L1.1 cmt. n.5), overruled on other grounds by
United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007); see
also United States v. Hernandez-Guardado, 228 F.3d 1017,
1027–28 (9th Cir. 2000).
We have noted that there is a baseline risk inherent in all
vehicular travel, and 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.” United
States v. Torres-Flores, 502 F.3d 885, 889 (9th Cir. 2007).
The examples provided in Application Note 5 represent the
“kinds of risks [that] substantially increase a concealed
passenger’s chances of injury or death over and above the
8 UNITED STATES V. BERNARDO
normal danger of vehicular travel.” Id. at 890. Accordingly,
offense conduct may meet the criteria of § 2L1.1(b)(6) if it
involves similar types of risks. Id. For instance, offense
conduct that involves transportation over a more dangerous
route, a dangerous manner of driving, an unsafe vehicle,
insufficient ventilation, a risk of injury from moving
mechanical parts, or an increased 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 crumpled metal or shattered glass than if they had
been seated normally),” may meet the criteria of
§ 2L1.1(b)(6). Id.; see also United States v. Miguel, 368 F.3d
1150, 1155–56 (9th Cir. 2004); United States v. Garcia-
Guerrero, 313 F.3d 892, 896–97 (5th Cir. 2002). By contrast,
transporting aliens in the hatchback area of a vehicle, without
more, does not give rise to a “substantial risk of death or
serious bodily injury” because unlike being locked in the
trunk of a car, an alien “easily could extricate himself” from
a hiding place under a hatchback cover. United States v.
Dixon, 201 F.3d 1223, 1233–34 (9th Cir. 2000); see also
Miguel, 368 F.3d at 1155 (distinguishing a closed trunk from
a trunk with the back seat pushed down such that it was open
to the main cabin of the car). Similarly, transporting an alien
covered by carpeting behind the back seat of an extended-cab
pickup truck did not involve “a substantial risk of death or
serious bodily injury” because transportation in a vehicle that
“had been modified to create additional space for a passenger
to hide behind the back seat,” created an incremental risk to
the alien “only in the highly unlikely event of an accident.”
Torres-Flores, 502 F.3d at 889–91.
UNITED STATES V. BERNARDO 9
B
We now consider whether the district court erred in
applying § 2L1.1(b)(6) to the facts of this case.
The district court found that transporting a person by
strapping her inside a dashboard was neither safe nor
comfortable but rather “extremely precarious” and dangerous,
and we cannot say that those factual findings were clearly
erroneous given the evidence in the record. We disagree with
Bernardo’s argument that the district court erred because
(among other reasons) it did not consider that the strap
holding up the alien had a seatbelt-type lever that would have
allowed the alien to release herself without using a knife, the
dashboard area was large without sharp metal or jagged
edges, and the compartment was not airtight. While these
observations indicate that the dashboard compartment did not
raise certain specific dangers (such as the risk of being
suffocated or cut), it does not undermine any of the district
court’s findings regarding the risks of transporting a person
in the dashboard of a vehicle. See United States v. Cuyler,
298 F.3d 387, 390 (5th Cir. 2002).
We next turn to whether this conduct met the criteria of
Application Note 5, which indicates that § 2L1.1(b)(6)
applies to a “wide variety of conduct,” including but not
limited to the listed examples. Accordingly, we consider
whether the offense conduct at issue is analogous to the type
of reckless conduct listed in Note 5. Based on the evidence
in this case, it is reasonable to conclude that stashing a person
in a dashboard compartment is analogous to “transporting
persons in the trunk or engine compartment of a motor
vehicle.” U.S.S.G. § 2L1.1 cmt. n.5. The dashboard of a
vehicle, like a trunk or engine compartment, is not meant to
10 UNITED STATES V. BERNARDO
hold a human body. A person strapped inside a dashboard,
like a person in a locked trunk or engine compartment, cannot
easily escape from the enclosure to enter the passenger
compartment of the vehicle. By contrast, a person hidden
under a hatchback or in a compartment behind the back seat
remains within the portion of a vehicle intended for
passengers and can readily escape from the lightweight cover
used for concealment. See Dixon, 201 F.3d at 1233; compare
Cuyler, 298 F.3d at 390 (applying § 2L1.1(b)(6) where the
defendant transported four illegal aliens in the bed of his
pickup truck), with United States v. Solis-Garcia, 420 F.3d
511, 516 (5th Cir. 2005) (reversing the district court’s
application of § 2L1.1(b)(6) where the defendant transported
aliens in the cargo area of a minivan, which was inside the
passenger compartment of the vehicle). In addition, the
district court’s findings that placing a person in a dashboard
compartment is “extremely precarious” and unsafe supports
the conclusion that the conduct amounts to “harboring
persons” in a “dangerous, or inhumane condition,” as stated
in Note 5.
Bernardo argues that the district court erred in applying
an enhancement under § 2L1.1(b)(6) because even if the
district court correctly found that the offense conduct met the
criteria in Note 5, Torres-Flores requires the district court to
make the independent finding that the conduct “either
exacerbates the likelihood of an accident, subjects the
passenger to a risk of injury even during an accident-free ride,
or both.” 502 F.3d at 890. We disagree. Torres-Flores did
not formulate a new requirement for applying § 2L1.1(b)(6)
that supersedes or contradicts the Guidelines notes; rather, it
explained that the conduct listed in the Guidelines notes
shows the sorts of risks that meet the § 2L1.1(b)(6)
requirement. Id. at 890 (noting that “we accord ‘considerable
UNITED STATES V. BERNARDO 11
weight’ to the Guidelines’ application notes” and that these
notes identify risks that “substantially increase a concealed
passenger’s chances of injury or death over and above the
normal danger of vehicular travel”). As we explained in
Torres-Flores, the conduct at issue in that case, transporting
an alien covered by carpeting behind the back seat of an
extended-cab pickup truck, did not give rise to those sorts of
risks. By contrast, the offense conduct at issue in this case
gave rise to a substantially increased risk of injury or death
above the baseline risk of vehicular travel, as indicated by the
examples in Note 5.
Because the offense conduct here meets the criteria of
Note 5, we conclude that the district court did not err in
determining that the conduct created a substantial risk of
death or serious harm and therefore did not err in applying the
six-level enhancement to Bernardo’s base offense level.
AFFIRMED.