Case: 13-13460   Date Filed: 02/05/2014   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13460
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:12-cr-10011-JEM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ADOLFO GUZMAN,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (February 5, 2014)

Before TJOFLAT, JORDAN, and HILL, Circuit Judges.

PER CURIAM:
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      Adolfo Guzman appeals his 21-month sentence, imposed at the bottom of

the guideline range, after pleading guilty to a single count of conspiracy to

encourage and induce aliens to enter the United States, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(I). On appeal, he argues that the district court erred in applying

the enhanced base offense level provided in U.S.S.G. § 2L1.1(b)(6) for recklessly

creating a substantial risk of death or serious bodily injury to another person after

determining that Guzman endangered the lives of 3 aliens by attempting to

transport them on a jet ski, which had a range of 86 miles, on a 90-mile trip from

Cuba to the United States. He contends that his conduct did not create a risk of

death or serious bodily injury to his passengers because the jet ski had a

four-person capacity and, thus, was not overloaded. He further argues that each

passenger had a life vest, and that jet skis are designed to operate in the ocean.

      For sentencing guideline calculation issues, we review purely legal questions

de novo and the district court’s findings of fact for clear error. United States v.

Rodriguez-Lopez, 

, 1136-37 (11th Cir. 2004). We usually review the

district court’s application of the Guidelines to the facts with due deference. 

under § 2L1.1(b)(6) applies when an alien-smuggling

offense involves “intentionally or recklessly creating a substantial risk of death or

serious bodily injury to another person.” U.S.S.G. § 2L1.1(b)(6). Application

Note 5 for this provision indicates that the enhancement is applicable to a wide


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variety of reckless conduct, including, for example, carrying substantially more

passengers than the rated capacity for a vessel or harboring people in dangerous

conditions. U.S.S.G. § 2L1.1, comment. (n.5). We have upheld the enhancement

where a defendant smuggled 11 aliens from the Bahamas to Florida on a boat

where they were held in cramped conditions with only 3 life vests available.

United States v. Caraballo, 

, 1230-31 (11th Cir. 2010). We noted

that the conditions were “undeniably dangerous and inhumane,” and that the

passengers would have faced serious injury or death if the boat had capsized. 

case, we upheld the enhancement where the defendant had 36 people

aboard a boat designed to hold 12, and where there were no life vests available.

United States v. De La Cruz Suarez, 

, 1220 (11th Cir. 2010).

      The district court correctly applied the enhanced base offense level under

§ 2L1.1(b)(6) because Guzman could not make the trip from Cuba to the United

States without risking running out of fuel, and even if he had been able to refuel

the jet ski in open ocean waters, his plan to do so was dangerous. He further risked

the lives of his passengers by bringing extra fuel aboard the jet ski and by

attempting the trip at night without any external lights, signals, or communications

equipment that he could use to summon help when the watercraft became

distressed.




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      Upon consideration of the entire record on appeal, and after review of the

parties’ appellate briefs, we affirm.

      AFFIRMED.




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