U.S. v. Rodriguez-Mesa

• Decision Date: 15 March 2006
• Docket Number: No. 04-41757.,04-41757.
• Citation: 443 F.3d 397
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julian RODRIGUEZ-MESA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

443 F.3d 397

UNITED STATES of America, Plaintiff-Appellee, v. Julian RODRIGUEZ-MESA, Defendant-Appellant.

No. 04-41757.

United States Court of Appeals, Fifth Circuit.

March 15, 2006.

David Hill Peck (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., H. Michael Sokolow (argued), Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:

Defendant-appellant Julian Rodriguez-Mesa pleaded guilty to one count of transporting an alien and was sentenced to nineteen months in prison and two years of supervised release. The question presented in this appeal is whether the district court, in sentencing Rodriguez-Mesa, erred in applying the enhancement for "intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person" for Rodriguez-Mesa's transportation of an illegal alien. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.1(b)(5) (2003) [hereinafter U.S.S.G.]. Although we conclude that the district court did not err in applying the Guidelines, we must nevertheless VACATE and REMAND for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 7, 2004, Julian Rodriguez-Mesa drove a Plymouth Voyager minivan to the Sarita, Texas border patrol checkpoint.¹ After observing that Rodriguez-Mesa appeared to be nervous, the border patrol agent at the primary inspection point directed him to a secondary inspection for further investigation. At the secondary inspection, agents discovered a male occupant, later identified as Rosendo Ponce-Mata, a citizen of Mexico, in a compartment that had been built in the center console of the minivan. The compartment was located between the front seats of the vehicle, and there was a door located on top of the compartment. The compartment covered half of Ponce-Mata's body, including his head and his torso, but his legs extended on to the floorboard of the front passenger's side of the vehicle.

Rodriguez-Mesa and Ponce-Mata were advised of their Miranda rights and both agreed to make statements to the border patrol agents. Rodriguez-Mesa admitted that he was transporting Ponce-Mata in order to rid himself of a $400 debt that he owed to a man by the name of Ricardo Garcia of Houston, Texas. Rodriguez-Mesa stated that he picked up the minivan from Garcia and that Ponce-Mata was already inside the vehicle when he took possession of the minivan.

In his statement, Ponce-Mata told the agents that he had crossed into the United States illegally, without documentation, and that he had made arrangements to be smuggled from Mexico to Houston for $2000. Ponce-Mata claimed that when Rodriguez-Mesa picked him up on July 7, 2004, Rodriguez-Mesa instructed him to hide in the compartment located in the center console of the minivan.² In his sworn deposition on August 3, 2004, Ponce-Mata gave a similar account to what he had earlier told the border patrol agents, but he added that he was not endangered by being transported in the minivan's console area. He testified that he was not locked in the compartment, had enough air to breathe, and was able to feel the vehicle's air conditioning system.

On July 28, 2004, Rodriguez-Mesa was charged in a one-count indictment with transporting an illegal alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(ii). The indictment also contained an additional section entitled "Aggravating Factor." This section alleged that Rodriguez-Mesa "intentionally or recklessly created a substantial risk of death or serious bodily injury to another person" in violation of U.S.S.G. § 2L1.1(b)(5). Without a written plea agreement, Rodriguez-Mesa pleaded guilty to the alien transporting charge, but he refused to plead guilty to the aggravating factor alleged in the indictment.³

In the Presentence Report ("PSR"), the probation officer made the following sentencing recommendations: The base offense level was 12, U.S.S.G. § 2L1.1(a)(2); six points were added because during the commission of the offense, Rodriguez-Mesa "recklessly created a substantial risk of death or serious bodily injury to another person by concealing an illegal alien in the console area of the transport vehicle," U.S.S.G. § 2L1.1(b)(5); and three points were subtracted for acceptance of responsibility, U.S.S.G. § 3E1.1(a). Based on these adjustments, the probation officer recommended a total offense level of 15. With Rodriguez-Mesa's criminal history category of I, the recommendation resulted in a guideline imprisonment range of eighteen to twenty-four months.

Rodriguez-Mesa filed written objections to the PSR, disputing the six-level enhancement under U.S.S.G. § 2L1.1(b)(5) on two grounds. First, he contended that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the enhancement violated his Sixth Amendment right to a jury trial because the judge used facts not admitted by him or proven to a jury beyond a reasonable doubt. Second, he argued that the enhancement for reckless endangerment was not supported by the facts. He alleged, as support, that Ponce-Mata's sworn deposition showed that Ponce-Mata was not in any danger, had enough air to breathe, and could have opened the lid to the compartment at any time.

In an addendum to the PSR, the probation officer maintained that the increase was applicable, stating that

[i]n respect to the Blakely objection, objections which deal with the constitutionality of a case will be addressed by the Court at sentencing. As per the reckless endangerment adjustment [pursuant to U.S.S.G. § 2L1.1(b)(5)], the defendant was transporting an illegal alien in a compartment built into the center console area of the transport vehicle. Had an accident occurred, the illegal alien would not be in a position to free himself.

The district court overruled Rodriguez-Mesa's objections to the PSR at sentencing. In rejecting Rodriguez-Mesa's Blakely objection, the district court stated that it had to "go with the law of the Circuit"⁴ and concluded that Rodriguez-Mesa was not entitled to a jury trial on the adjustment for reckless endangerment but that it would "make a finding, if any, by beyond a reasonable doubt." After considering Ponce-Mata's sworn deposition and photographs of the compartment and Ponce-Mata in the compartment,⁵ the district court also rejected Rodriguez-Mesa's objection to the reckless endangerment enhancement under U.S.S.G. § 2L1.1(b)(5). Specifically, the district court found that the console was not designed for passenger use,⁶ the console looked like it was the same size as from the factory, and Ponce-Mata's "head and upper body were stuffed in the console, and his feet were twisted around underneath the glove compartment."⁷ The district court concluded that the reckless endangerment enhancement should apply, "find[ing] beyond a reasonable doubt that Mr. Rodriguez-Mesa created a substantial risk of serious bodily injury by transporting an illegal alien in that fashion." On December 15, 2004, the district court sentenced Rodriguez-Mesa to nineteen months in prison and two years of supervised release.

Rodriguez-Mesa now appeals, arguing that: (1) the district court erred in applying a six-level enhancement under U.S.S.G. § 2L1.1(b)(5); and (2) this court should vacate and remand for resentencing because he raised a Blakely objection at the district court and the government has failed to prove that the error was harmless beyond a reasonable doubt.

II. STANDARD OF REVIEW

Although the Supreme Court in Booker excised and struck down the statutory provisions that made the Sentencing Guidelines mandatory,⁸ "a district court is still required to calculate the guideline range and consider it advisory." United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir.2005) (citing Booker, 543 U.S. at 245-46, 125 S.Ct. 738, and United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005), cert. denied, ___ U.S. ___, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005)). After Booker, we continue to review the district court's interpretation and application of the Guidelines de novo and its factual determinations for clear error. United States v. Solis-Garcia, 420 F.3d 511, 513-14 (5th Cir.2005); see also United States v. Villanueva, 408 F.3d 193, 203 n. 9 (5th Cir.2005) (noting that this court continues to review factual findings with respect to the application of adjustments under the Guidelines for clear error), cert. denied, ___ U.S. ___, 126 S.Ct. 268, 163 L.Ed.2d 241 (2005); United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005) (concluding that this court continues after Booker to review the district court's interpretation and application of the Guidelines de novo).⁹

III. DISCUSSION

Section 2L1.1(b)(5) provides that a defendant's base offense level must be at least 18 "[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). The commentary to § 2L1.1(b)(5) explains that

[r]eckless conduct to which the adjustment from subsection (b)(5) applies includes a wide variety of conduct (e.g., transporting persons in the trunk or engine compartment of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, or harboring persons in a crowded, dangerous, or inhumane condition).

U.S.S.G. § 2L1.1(b)(5) cmt. n.6.¹⁰ Besides the latter part of the commentary, which mentions harboring persons in a dangerous condition, nothing in the commentary directly speaks to transporting an alien in a compartment located inside of a vehicle. See id. Although the factual scenario in this case is not expressly included in this list of reckless conduct, this court has not limited § 2L1.1(b)(5) to the examples...