United States v. Joseph Bernardo
818 F.3d 983, 2016 U.S. App. LEXIS 6683, 2016 WL 1445223 (2016)
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Rule of Law:
Transporting a person hidden within a vehicle's dashboard compartment constitutes recklessly creating a substantial risk of death or serious bodily injury, justifying a sentencing enhancement under U.S.S.G. § 2L1.1(b)(6). This determination is made by analogy to the dangerous conditions listed in the Sentencing Guidelines, such as transport in a trunk or engine compartment.
Facts:
- On February 15, 2015, Joseph Bernardo was waiting in line at the San Ysidro Port of Entry in his Ford Windstar van.
- A canine unit alerted an officer to Bernardo's vehicle.
- Upon inspection, an officer discovered a woman from Mexico hidden inside a compartment behind the vehicle's dashboard.
- The woman was held in place by a heavy-duty cargo strap wrapped around her mid-section.
- The officer had to cut the strap with a knife to free the woman, who confirmed Bernardo had agreed to smuggle her into the United States.
- After being freed, the woman appeared alert and unharmed.
Procedural Posture:
- The government charged Joseph Bernardo in U.S. District Court with bringing an unlawful alien into the United States.
- Bernardo pleaded guilty to the charges without a plea agreement.
- A presentence investigation report (PSR) recommended a six-level sentencing enhancement under U.S.S.G. § 2L1.1(b)(6) for recklessly creating a substantial risk of injury.
- Bernardo objected to the enhancement, arguing his conduct did not create such a risk.
- The district court overruled the objection, applied the enhancement, and imposed a sentence of 16 months.
- Bernardo, as the appellant, appealed the district court's application of the sentencing enhancement to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does strapping a person inside a vehicle's dashboard compartment for the purpose of human smuggling constitute 'recklessly creating a substantial risk of death or serious bodily injury' that justifies a six-point sentencing enhancement under U.S.S.G. § 2L1.1(b)(6)?
Opinions:
Majority - Ikuta, Circuit Judge
Yes. Strapping a person inside a vehicle's dashboard compartment recklessly creates a substantial risk of death or serious bodily injury, warranting a sentencing enhancement under U.S.S.G. § 2L1.1(b)(6). The court's reasoning is based on Application Note 5 of the Sentencing Guidelines, which lists examples of reckless conduct like transporting persons in a trunk or engine compartment. The court found that a dashboard compartment is analogous to a trunk because it is not meant for human transport, and a person concealed within it cannot easily escape. This method of transport substantially increases the risk of injury or death beyond the baseline risk of normal vehicular travel, distinguishing it from less dangerous methods like hiding someone in a hatchback area. Therefore, the district court's finding that the situation was 'extremely precarious' and its application of the enhancement were correct.
Analysis:
This decision clarifies the application of the U.S.S.G. § 2L1.1(b)(6) sentencing enhancement for human smuggling, solidifying that the 'substantial risk' analysis hinges on analogy to the examples in the guideline's application notes. The court reinforces the principle that concealment in any area of a vehicle not designed for passengers and from which escape is difficult will likely trigger the enhancement. This creates a clear precedent for lower courts, distinguishing inherently dangerous concealment methods like dashboards and trunks from less perilous ones, thereby promoting consistency in sentencing for such offenses.
