[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 1, 2006
No. 06-12125 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-10028-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER GIL RODRIGUEZ,
Defendant-Appellant.
________________________
No. 06-12126
Non-Argument Calendar
________________________
D. C. Docket No. 05-10028-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS MANUEL TABOADA-CABRERA,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(November 1, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Alexander Gil Rodriguez and Luis Manuel
Taboada-Cabrera (collectively “defendants”) challenge their 120-month sentences
imposed after they pled guilty to conspiracy to encourage and induce aliens to
come to and enter the United States unlawfully, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I). After review, we affirm.
I. BACKGROUND
A. Offense Conduct
After receiving a tip that a “go-fast” boat had departed from Cuba for the
United States, the United States Coast Guard (“USCG”) initiated a search and
located a “go-fast” boat, a thirty-three-foot fishing vessel, traveling without
navigational lights. The USCG launched a smaller boat to intercept the go-fast
boat. However, the go-fast boat disregarded all signals to stop and tried to elude
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the USCG by traveling at a high rate of speed and on a “zigzag” course. The
USCG deployed an entangling device, which hindered the go-fast boat and
eventually caused it to come to a stop.
After the go-fast boat stopped, many people stood up, causing a shift in
weight and the capsizing of the go-fast boat. All the occupants of the boat were
ejected into the water. The USCG began rescue efforts. However, one six-year-
old boy drowned after becoming trapped under the capsized go-fast boat. The
USCG discovered that a total of thirty-one Cuban nationals had been on board the
go-fast boat, including the deceased child. Twenty-nine of the individuals had not
received prior official authorization to enter the United States. The two remaining
individuals, the defendants in this case, previously had been paroled into the
United States.
In a subsequent interview, the parents of the deceased child stated that the
defendants had picked them up on the Cuban coastline. The parents also said that
the passengers of the go-fast boat pled with the defendants to stop while they were
being pursued.
B. Sentencing
The presentence investigation reports (“PSI”) recounted the facts of the
defendants’ smuggling offense detailed above. In addition, the PSI recommended,
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inter alia, the following increases in the defendants’ base offense levels: (1) an
increase to 18, pursuant to U.S.S.G. § 2L1.1(b)(5), because the go-fast boat had
been overloaded with people, which caused a substantial risk of death or serious
bodily injury; (2) an eight-level increase, pursuant to U.S.S.G. § 2L1.1(b)(6)(4),
because a person had died; and (3) a two-level increase, pursuant to U.S.S.G. §
3C1.2, for recklessly creating a substantial risk of death or serious bodily injury
during flight from a law enforcement officer. The defendants did not object to the
PSI.
At the sentencing hearing, the district court confirmed that there were no
objections to the PSI. With a total offense level of 25 and a criminal history
category I, the defendants’ advisory guidelines range was 57 to 71 months’
imprisonment. Counsel for the defendants argued for a sentence at the low end of
the guidelines range. The district court gave the parties notice that it was
considering an upward departure from the guidelines range because of the death of
the child and continued the hearing to allow the parties to file briefs.
At the continued sentencing hearing, the defendants argued that the district
court should not depart from the advisory guidelines range because the child’s
death already had been taken into account in imposing the enhancement under
§ 2L1.1(b)(6)(4). The defendants also stated that the video recording taken by the
4
USCG during the defendants’ capture showed the following: (1) the boat had
stopped when the USCG deployed the entangling device; (2) the entangling device
caused the boat to jerk backward and take on water; (3) the people on the go-fast
boat shifted to the front of the boat, which caused the boat to capsize; (4) the
people in the water screamed to the USCG crew to help a boy trapped under the
boat; and (5) the USCG crew responded back in Spanish that they could not
proceed with rescue efforts until they received orders to do so. The defendants
then argued that the facts were not so egregious as to warrant a further increase in
their sentences.
The district court questioned whether a thirty-month increase was sufficient
for the death of a six-year-old child and stated that the age of the child who died
should be considered in determining the sentence. The district court also noted that
the passengers had pled with the defendants to stop and that there were thirty-one
people on board a thirty-three-foot boat. During this discussion, the defendants
admitted that the go-fast boat had been overcrowded. However, the defendants
then suggested that the USCG’s actions may have led to the child’s death. When
the district court expressed concern about the defendants’ attempt to “shift
responsibility” for the child’s death to the USCG, the defendants’ counsel stated,
“Had [the defendants] not decided to do what they did, that little boy would be
5
most likely alive today. They understood that completely, and that’s why they
accepted responsibility.”
In determining the defendants’ sentences, the district court noted the
guidelines calculations and the 18 U.S.C. § 3553(a) factors. The district court then
stated that it found the guidelines calculation, which increased the defendants’
sentences by only two and a half years for the death of the child, to be
inappropriate. The district court stated that it also had considered the large number
of people on board the go-fast boat and the dangerousness of engaging in high
speed chases to both the aliens and the USCG crew. The district court stated that
the increasing number of alien smuggling cases involving high speed chases
suggested that a sentence above the guidelines range was needed to promote
respect for the law and afford adequate deterrence. The district court then
sentenced each defendant to 120 months’ imprisonment. When asked by the
district court, the defendants stated that they had no objection to the district court’s
findings of fact or the manner in which the sentence was pronounced.
After sentencing, the district court issued a sentencing order stating that it
had imposed the 120-month sentences after “concluding that: (1) An eight level
guideline enhancement does not adequately take into consideration the death of a
six year old child; (2) the current guideline provides insufficient and inadequate
6
deterrence for this type of offense; and (3) the USCG was unnecessarily put at risk
of property damage and personal injury in this high speed pursuit.” United States
v. Gil-Rodriguez, 424 F. Supp. 2d 1349, 1353-54 (S.D. Fla. 2006). The defendants
filed this appeal.
II. DISCUSSION
A. Calculation of the Guidelines Range
On appeal, the defendants argue that the district court improperly applied
three guidelines enhancements in calculating their guidelines ranges. Although the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), rendered the guidelines advisory and established a reasonableness standard
in imposing the ultimate sentence, the district court is still obligated to consult the
guidelines and “calculate correctly the sentencing range prescribed by the
Guidelines.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005).
Because the defendants failed to object to the district court’s calculation of the
guidelines, we review for plain error only. See United States v. Raad, 406 F.3d
1322, 1323 (11th Cir.), cert. denied, 126 S. Ct. 196 (2005). “Plain error occurs
where (1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s
substantial rights in that it was prejudicial and not harmless; and (4) that seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.” Id.
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(quotation marks omitted). Furthermore, because the defendants did not object to
the facts in the PSI, these facts are deemed admitted for sentencing purposes.
United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006).1 We find no plain
error.
1. U.S.S.G. § 2L1.1(b)(5)
Section 2L1.1(b)(5) provides for an increase in a defendant’s base offense
level by two levels or to level 18, whichever is greater, if the offense involved
“intentionally or recklessly creating a substantial risk of death or serious bodily
injury to another person.” The district court imposed this enhancement because the
go-fast boat was “carrying substantially more passengers than its capacity.” Gil-
Rodriguez, 424 F. Supp. 2d at 1352.
The defendants argue that, because no evidence was presented as to the
capacity of the boat, the district court did not have sufficient evidence to find that
the boat was overcrowded.
The problem for the defendants is that they admitted at sentencing that the
boat was overcrowded, as follows:
1
On appeal, the defendants argue that they put certain facts in dispute during their plea
colloquy. Any factual disputes raised during the plea hearing that were not raised at sentencing
were lost. See Wade, 458 F.3d at 1277 (explaining that the failure to object to the PSI’s factual
allegations admits those facts for sentencing purposes and that the “failure to object to a district
court’s factual findings precludes the argument that there was error in them”). In any event, as
explained above, the district court did not plainly err in its guidelines calculations.
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THE COURT: I also note that there were 29 people on board,
29 aliens and the two defendants. So there were 31 people, and the
boat was a 33-foot vessel.
MR. AMSTER: I believe so, Your Honor, yes.
THE COURT: So, it would be fair to say that the boat was
overcrowded.
MR. AMSTER: Correct.
The defendants also did not dispute the PSI’s factual allegations that the go-fast
boat was only thirty-three-feet long, yet carried thirty-one people when it was
intercepted. Therefore, the district court did not plainly err in finding that the go-
fast boat was overcrowded.
2. U.S.S.G. § 3C1.2
The district court increased the defendants’ base offense levels by two levels
because they had “recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law enforcement
officer . . . .” U.S.S.G. § 3C1.2 (emphasis supplied). The defendants argue that
there was no evidence to support the district court’s factual finding that they
attempted to flee.
At their plea colloquy, the defendants maintained that they had not fled the
USCG, but merely sped up to avoid being rammed. However, the defendants did
not reassert this position in opposition to the PSI, which stated that the defendants
tried to evade capture by traveling on a “zigzag course” at a high rate of speed.
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Furthermore, at the sentencing hearing, defendants conceded that they had fled the
USCG when their counsel stated, “There was a chase. It was a dangerous chase,
no question.” Accordingly, the district court did not plainly err in its finding that
the defendants fled from law enforcement.2
3. U.S.S.G. § 2L1.1(b)(6)
The district court increased the defendants’ offense levels by eight, pursuant
to U.S.S.G. § 2L1.1(b)(6), because of the child’s death. Section 2L1.1(b)(6)
requires an eight-level increase when a person has died, as follows:
If any person died or sustained bodily injury, increase the offense
level according to the seriousness of the injury:
Death or Degree of Injury Increase in Level
....
(4) Death add 8 levels
U.S.S.G. § 2L1.1(b)(6)(4). The defendants argue that this enhancement was
improper because the child did not die during the commission of the offense, but
after the defendants had surrendered to the USCG.
Nothing in the language of § 2L1.1(b)(6) requires the death to have occurred
2
In a footnote, the defendants argue that the commentary to U.S.S.G. § 2L1.1 proscribes a
§ 3C1.2 adjustment when the section (b)(5) increase is based on conduct related to fleeing from a
law enforcement officer. The comment to § 2L1.1(b)(5) states in relevant part, “If subsection
(b)(5) applies solely on the basis of conduct related to fleeing from a law enforcement officer, do
not apply an adjustment from § 3C1.2 (Reckless Endangerment During Flight).” See U.S.S.G. §
2L1.1, cmt. n.6 (emphasis supplied). This commentary is inapplicable here because the conduct
supporting the § 2L1.1(b)(5) enhancement was the overcrowding of the go-fast boat, not the
fleeing from the USCG.
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during the commission of the offense. The defendants have not shown plain error
in the district court’s including this enhancement in the guidelines calculations.3
B. Reasonableness
Finally, the defendants assert that their 120-month sentences are
unreasonable. After Booker, a district court, in determining a reasonable sentence,
must correctly calculate the advisory guidelines range and then consider the factors
set forth in 18 U.S.C. § 3553(a).4 United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005).
We review a defendant’s ultimate sentence for reasonableness in light of the
§ 3553(a) factors. United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.
2005). “[T]he party who challenges the sentence bears the burden of establishing
3
We note that there is a split in the circuit courts as to whether U.S.S.G. § 2L1.1(b)(6)
requires the death or injury to have been proximately caused by the defendant’s relevant conduct
or merely that the defendant’s relevant conduct was a contributing factor to the death or injury.
Compare United States v. Flores-Flores, 356 F.3d 861, 862-63 (8th Cir. 2004) (requiring a causal
connection between the death or injury and the dangerous conditions created by the defendant’s
unlawful conduct) with United States v. Cardena-Garcia, 362 F.3d 663, 665-66 (10th Cir. 2004)
(rejecting a proximate cause requirement in favor of a showing that the death or injury was
reasonably foreseeable and the defendant’s conduct was a contributing factor). We need not
address this issue because, in this case, there was no plain error in the district court’s imposing
this enhancement under either causation test.
4
The factors in 18 U.S.C. § 3553(a) include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the
defendant with needed educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the
Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to victims.
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that the sentence is unreasonable in the light of both [the] record and the factors in
section 3553(a).” Talley, 431 F.3d at 788. The fact that the defendants received
the statutory maximum term of imprisonment for their convictions does not
necessarily make their sentences unreasonable. See, e.g., United States v. Eldick,
443 F.3d 783, 740 (11th Cir. 2006) (upholding as reasonable a statutory maximum
sentence), cert. denied, __ S. Ct. __ (2006) (No. 06-5393).
Here, the defendants faced a properly calculated advisory guidelines range
of 57 to 71 months’ imprisonment. After hearing argument and considering the §
3553(a) factors, the district court concluded that a sentence within the guidelines
range failed to adequately account for the death of a six-year-old child or the risk
posed to the USCG crew by the high speed chase. The district court also
concluded that a guidelines sentence would not adequately deter future alien
smuggling ventures. Accordingly, the district court exercised its post-Booker
discretion and imposed 120-month sentences, above the advisory guidelines range.
The district court’s reasons for imposing the 120-month sentences reflect the
nature and circumstances of the offenses and the need for the sentences to reflect
the seriousness of the offense and to provide deterrence, all § 3553(a) factors. See
18 U.S.C. § 3553(a)(1), (2)(A) & (B). Although the defendants disagree with the
district court’s assessment of these factors, after reviewing the record, we cannot
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say that their 120-month sentences were unreasonable.5
Based on a review of the record and the parties’ briefs, we discern no
reversible error in the defendants’ 120-month sentences.
AFFIRMED.
5
We also reject the defendants’ argument that their sentences are so disproportionate as to
violate the Eighth Amendment. See United States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir.
2005) (“In general, a sentence within the limits imposed by statute is neither excessive nor cruel
and unusual under the Eighth Amendment.” (quotation marks omitted)).
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