U.S. v. Torres-Flores

• Decision Date: 04 September 2007
• Docket Number: No. 05-50898.,05-50898.
• Citation: 502 F.3d 885
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos TORRES-FLORES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

502 F.3d 885

UNITED STATES of America, Plaintiff-Appellee, v. Carlos TORRES-FLORES, Defendant-Appellant.

No. 05-50898.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2006.

Filed September 4, 2007.

Matthew C. Shaftel and Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Carol C. Lam, United States Attorney for the Southern District of California, San Diego, CA; Roger W. Haines, Jr., Assistant United States Attorney, San Diego, CA; Christopher P. Tenorio, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-05-00620-BTM.

Before: STEPHEN REINHARDT, ALEX KOZINSKI and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge IKUTA.

KOZINSKI, Circuit Judge:

We address whether the district court erred in refusing to give a lesser-included-offense instruction to the jury, and whether defendant was eligible for a sentencing enhancement pursuant to U.S.S.G. § 2L1.1(b)(5) (2005)¹ for transporting an alien in a manner creating a "substantial risk of death or serious bodily injury."

Facts

Carlos Torres-Flores drove up to the San Ysidro Port of Entry in an extended-cab pickup on March 23, 2005. Although he told the border inspector he had nothing to declare, the inspector became suspicious and proceeded to investigate. When the inspector opened the driver's side door, he saw a "big hump" in the carpet behind the back seat. That "hump" turned out to be Fortino Marquez-Cruz, an alien who lacked authorization to enter the United States. Defendant was arrested and charged with bringing an unauthorized alien to the United States without presenting him for inspection at the port of entry, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). He was convicted and sentenced to 30 months imprisonment.

On appeal, defendant challenges the district court's decision not to give a lesser-included-offense instruction and its decision, at sentencing, that defendant was eligible for an enhancement pursuant to U.S.S.G. § 2L1.1(b)(5) (2005).²

Analysis

1. Section 1324(a)(2) makes it both a felony and a misdemeanor to knowingly or recklessly bring to the United States "an alien [who] has not received prior official authorization to come to, enter, or reside in the United States." Whether the crime is a misdemeanor, punishable by no more than one year imprisonment, or a felony, punishable by up to 15 years imprisonment, depends on the existence of certain aggravating factors laid out in subsections 1324(a)(2)(B)(i)-(iii). In addition to the elements specifically listed in the statutory text, we have held that the felony offense contains an implied specific intent element, namely that defendant have acted with intent to "violate immigration laws." United States v. Barajas-Montiel, 185 F.3d 947, 952-53 (9th Cir.1999); see also United States v. Nguyen, 73 F.3d 887, 894 n. 4 (9th Cir.1995) (noting that when criminal intent is an implied element of a crime it "is no less an element of the offense here than if it had been expressly provided for in the statute").

Defendant claims that the district judge erred in refusing to instruct the jury that it could find defendant guilty of a misdemeanor offense under section 1324(a)(2)(A) while acquitting him of a felony offense under section 1324(a)(2)(B). A defendant is entitled to a lesser-included instruction if he shows that: 1) "the offense on which instruction is sought is a lesser-included offense of that charged" and 2) that the "jury rationally could conclude that the defendant was guilty of the lesser-included offense but not of the greater." United States v. Pedroni, 958 F.2d 262, 267-68 (9th Cir.1992).³ Everyone agrees that the misdemeanor offense here contains all of the elements of the felony, minus the specific intent requirement and the aggravating factors, and is therefore a lesser included within the greater felony offense. The parties dispute whether the district court abused its discretion in concluding that a rational jury could not have convicted defendant of the lesser offense while acquitting as to the greater. See United States v. Naghani, 361 F.3d 1255, 1262 (9th Cir.2004) (after we've determined that the charged offense contains all the elements of a lesser offense, we review the decision not to give a lesser-included instruction for abuse of discretion).

On this record, a rational jury could not have doubted that the statutory aggravating factor referenced in the indictment was present—that the alien was "not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry." See 8 U.S.C. § 1324(a)(2)(B)(iii). The primary inspector at the port of entry, Agent Gibbs, testified that defendant failed to present Marquez-Cruz for inspection, an account backed up by the referral slip Gibbs filled out before sending defendant to secondary. Although defendant attacked the credibility of the agent on other grounds, defendant never contested that Marquez-Cruz was not presented to the agent for inspection. When proposed instructions were being discussed, counsel for defense did not object to the district judge's observation that "there is no dispute" as to this element. And, in closing argument, defense counsel conceded that Agent Gibbs "found" Marquez-Cruz behind the back seat. Indeed, any assertion that defendant had presented the alien for inspection would have contradicted Torres-Flores' entire defense—that he was a "blind mule" who drove to the port of entry unaware that Marquez-Cruz was hiding behind his back seat.

The only real question is whether the jury could have convicted defendant of the misdemeanor without also finding that he acted with the intent that would convert the crime into a felony. Barajas-Montiel defined the implicit intent element in a section 1324(a)(2)(B) offense as a specific intent "to violate immigration laws." 185 F.3d at 953. In applying this requirement, we have held that the government need not prove that defendant intended to violate Title 8 of the U.S.Code.⁴ In a later smuggling case, United States v. You, 382 F.3d 958 (9th Cir.2004), we held that acting with "the purpose of avoiding [the aliens'] detection by immigration authorities" is "synonymous with having acted with necessary intent as required in Barajas-Montiel." Id. at 966 (alterations in original) (internal quotation marks omitted).

In order to convict defendant of either the misdemeanor or the felony, the jury had to find that defendant "knowingly" brought Marquez-Cruz to the United States—in other words, that he was aware of Marquez-Cruz's presence in the vehicle.⁵ As already noted, there was no dispute that defendant did not present Marquez-Cruz for inspection. According to You, this is tantamount to an intent to violate the immigration laws. Torres-Flores argues, however, that he may have had a different motive for failing to present Marquez-Cruz for inspection, namely that Marquez-Cruz may have wanted to avoid confronting law enforcement officers for a non-immigration-related reason, such as a fear that he would be found to have violated probation. There is no support in the record for any such finding. In any event, that Marquez-Cruz may have had a non-immigration-related reason for wishing to avoid detection does not change the fact that Torres-Flores knowingly hid him from immigration authorities and thus (according to You) acted with the intent to violate the immigration laws. Regardless of defendant's subjective reasons for failing to present Marquez-Cruz for inspection, a rational jury could not have found that defendant lacked the requisite intent while also finding that he knowingly helped Marquez-Cruz evade detection by immigration authorities. The district court therefore did not abuse its discretion in denying the lesser-included-offense instruction.

2. Defendant also challenges the district court's determination that the offense involved "a substantial risk of death or serious bodily injury to another person," a determination that resulted in a 6-level increase in his offense level and more than doubled the applicable Guidelines range from 12-18 months to 30-37 months. See U.S.S.G. § 2L1.1(b)(5) (2005). The extended-cab pickup truck defendant was driving had been modified to create additional space for a passenger to hide behind the back seat. Border agents discovered the alien passenger, Marquez-Cruz, hiding in this makeshift compartment.

We start with the observation that, although vehicular travel is generally quite safe, it is not risk-free. Every passenger traveling on our highways faces a small, but non-trivial, risk of death or injury.⁶ This baseline risk is inherent in all vehicular travel and must therefore be disregarded in determining whether the offense was committed in a manner that involved a "substantial risk of death or serious bodily injury to another person." 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 traveling on our streets and highways. The risk could be increased in a number of ways: (1) The driver could increase the likelihood of an accident by taking a dangerous route (e.g., off-road) or driving in a dangerous manner (e.g., recklessly or drunk); (2) the method of transportation could increase the likelihood of an accident (e.g., a severely overloaded vehicle); (3) the method of transportation could increase the risk of an injury even in the absence of an accident (e.g., passengers transported with insufficient ventilation or subject to injury from moving mechanical parts); or (4) the method of transportation could increase the risk that an accident, if it should occur, would cause injury or...