FILED
NOT FOR PUBLICATION MAR 14 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10074
Plaintiff-Appellee, D.C. No. 2:15-CR-00696-DJH
v.
MEMORANDUM*
JERRY LOPEZ,
Defendant-Appellant,
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Jerry Lopez challenges the 37-month sentence imposed following his guilty-
plea conviction for conspiracy to transport illegal aliens within the United States,
in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (a)(1)(B)(i). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
The government argues that the appeal should be dismissed on the basis of
the appeal waiver contained in the plea agreement. In light of the district court’s
ambiguous statement regarding the scope of the waiver during the plea colloquy,
we decline to dismiss. See Fed. R. Crim. P. 11(b)(1)(N); United States v.
Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995).
Lopez contends that the district court erred by increasing his offense level
under U.S.S.G. § 2L1.1(b)(6) upon finding that he recklessly created a substantial
risk of death or serious bodily injury in the course of his offense. He argues that
the court was required to find the facts supporting the enhancement by clear and
convincing evidence and such evidence was lacking. The undisputed facts showed
that Lopez transported three individuals in the trunk of his sedan, two individuals
were in the trunk for approximately two hours, and the trunk was cramped with no
fresh or cool air. Two of the individuals stated they feared for their safety, and one
explained she was short of breath. We need not resolve what evidentiary standard
the district court should have applied because, under any standard, these facts were
sufficient to support the enhancement. See U.S.S.G. § 2L1.1 cmt. n.5 (2015)
(“transporting persons in the trunk . . . of a motor vehicle” example of conduct
warranting increase); United States v. Bernardo, 818 F.3d 983, 986 (9th Cir. 2016).
AFFIRMED.
2 16-10074