[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 24, 2008
No. 08-10002 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-10022-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALDO RODRIGUEZ-GARCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 24, 2008)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Waldo Rodriguez-Garcia appeals his 37-month sentence imposed for
encouraging aliens to enter the United States. He asserts the district court
committed impermissible double counting by enhancing his sentence two levels
under U.S.S.G. § 3C1.2 after enhancing his sentence two levels under U.S.S.G.
§ 2L1.1(b)(6).
The standard of review for a claim of double counting is de novo. United
States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th Cir. 1999). “Impermissible
double counting occurs only when one part of the Guidelines is applied to increase
a defendant's punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines.” Id. at 1309
(quotations omitted). It is presumed the Sentencing Commission intended to apply
separate Guidelines sections cumulatively unless there are specific directions
otherwise. United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995).
In relevant part, under U.S.S.G. § 2L1.1(b)(6), a defendant receives a two-
level enhancement if the offense conduct recklessly creates a risk of serious bodily
injury to another person. Under U.S.S.G. § 3C1.2, a defendant receives a two-level
enhancement if flight from law enforcement recklessly creates a serious risk of
bodily injury to another person. If conduct justifying enhancement under
U.S.S.G. § 2L1.1(b)(6) is solely related to fleeing from law enforcement, then
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U.S.S.G. § 3C1.2 should not be applied. U.S.S.G. § 2L1.1, comment. (n.5). In
parallel, enhancement under U.S.S.G. § 3C1.2 should not be applied where “the
offense guideline in Chapter Two, or another adjustment in Chapter Three, results
in an equivalent or greater increase in offense level solely on the basis of the same
conduct.” U.S.S.G. § 3C1.2, comment. (n.1).
When acts of reckless conduct are temporally and spatially separated,
however, enhancement based on separate Guidelines provisions is permissible.
Matos-Rodriguez, 188 F.3d at 1312. In Matos-Rodriguez, the defendant was in his
vehicle when approached and told to stop by a Secret Service agent. Instead of
complying, the defendant accelerated toward the agent. Police pursued the
defendant’s vehicle. During the pursuit, the defendant drove recklessly, including
running stop signs, driving against oncoming traffic, and driving more than double
the speed limit. Id. at 1302.
In computing the Guidelines range, Matos-Rodriguez’s sentence was
enhanced under U.S.S.G. § 3A1.2(b) (official victim) and additionally under
U.S.S.G. § 3C1.2 (reckless endangerment during flight). Id. at 1303. The
defendant asserted that enhancement under both provisions impermissibly counted
his reckless conduct twice. Id. at 1309. We noted the assault on the agent was
distinct in time and space from the high speed chase, and the defendant’s conduct
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at issue “was not a single, uninterrupted event.” Id. at 1312. Because there were
really two distinct acts of reckless conduct, we held “[t]he enhancements were not
levied solely on the basis of the same conduct,” and affirmed the sentence
imposed. Id. (quotations omitted).
Rodriguez-Garcia’s claim the district court erred by double counting his
reckless conduct to justify two distinct enhancements is without merit because the
facts of this case show two distinct moments of reckless conduct leading to two
distinct risks of serious bodily injury. First, Rodriguez-Garcia overloaded his
vessel with Cuban aliens, supporting an enhancement under U.S.S.G.
§ 2L1.1(b)(b). Second, Rodriguez-Garcia fled the Coast Guard, supporting an
enhancement under U.S.S.G. § 3C1.2. The two instances of reckless conduct are
divided in time by the initial intervention by the Coast Guard. The two instances
of reckless conduct are also divided in space by the distance from Havana, where
Rodriguez-Garcia loaded his vessel, and 20 miles south of Florida, where the Coast
Guard ordered Rodriguez-Garcia to heave to his vessel. Thus, the district court did
not commit impermissible double counting because the two acts of reckless
conduct were distinct in time and space. Accordingly, we affirm Rodriguez-
Garcia’s sentence.
AFFIRMED.
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