NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 20 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50416

                Plaintiff-Appellee,             D.C. No.
                                                3:18-cr-02899-LAB-1
 v.

ALBERTO DANIEL CASTELLANOS,                     MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                    Argued and Submitted December 10, 2019
                             Pasadena, California

Before: WARDLAW and LEE, Circuit Judges, and KENNELLY,** District Judge.

      Alberto Castellanos appeals his forty-eight month sentence for his guilty-

plea conviction of transporting undocumented immigrants for financial gain, 18

U.S.C. §§ 1324(a)(1)(A)(ii), (v)(II), and (a)(1)(B)(i), and high-speed flight from a

Border Patrol checkpoint, 18 U.S.C. § 758. He argues that the district court erred


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
by dividing his continuous flight from Border Patrol into two segments and

applying the United States Sentencing Guidelines (U.S.S.G.) § 2L1.1(b)(6)

adjustment for the highway segment and the additional § 3C1.2 enhancement for

the surface-street segment. We agree. Because the court applied the § 2L1.1(b)(6)

adjustment solely based on Castellanos’s dangerous driving while fleeing Border

Patrol, it erred in segmenting the chase to apply the additional § 3C1.2

enhancement for the same conduct. See United States v. Lopez-Garcia, 

, 971-73 (9th Cir. 2003); U.S.S.G. §§ 2L1.1 cmt. n.3, 3C1.2 cmt. n.1.

      The government argues that the application of § 3C1.2 was proper, because

the district court “only partially relied” on Castellanos’s driving when it applied

§ 2L1.1(b)(6)—it also focused on his endangering individuals by transporting them

in the trunk of his car. See United States v. Bernardo, 

, 986 (9th Cir.

2016) (explaining that mode of transportation may warrant a § 2L1.1(b)(6)

adjustment if based on characteristics such as lack of seatbelts or adequate

ventilation); U.S.S.G. § 2L1.1(b)(6) cmt. n.3 (listing transport of individuals in the

trunk of a car as an example of reckless conduct warranting a § 2L1.1(b)(6)

adjustment). But each time the district court analyzed the risks to the individuals

in Castellanos’s trunk, it focused exclusively on Castellanos’s high-speed and

erratic driving, and made no reference to the condition of the trunk. Because the

district court was clear that Castellanos’s “endangering people with the way he was


                                          2
driving” was the basis for its application of § 2L1.1(b)(6), the additional § 3C1.2

enhancement for dangerous driving was error.

      Despite the district court’s error, we may affirm a sentence “on any ground

supported by the record, even if it differs from the rationale of the district court.”

United States v. Nichols, 

, 1122 (9th Cir. 2006). To decide if we can

affirm the application of both § 2L1.1(b)(6) and § 3C1.2, we must start by

determining whether the record establishes that any conduct other than

Castellanos’s flight would support the § 2L1.1(b)(6) adjustment. See Lopez-

.

      Section 2L1.1(b)(6) provides for an offense-level increase if a defendant

“intentionally or recklessly creat[ed] a substantial risk of death or serious bodily

injury. ” Conduct is reckless for the purposes of § 2L1.1(b)(6) if “the defendant

was aware of the risk created by his conduct and the risk was of such a nature and

degree that to disregard that risk constituted a gross deviation from the standard of

care that a reasonable person would exercise in such a situation.” United States v.

Rodriguez-Cruz, 

, 1059 (9th Cir. 2001).

      Although the record demonstrates that Castellanos’s transport of two

individuals in his trunk was an act of endangerment, it is silent as to Castellanos’s

awareness of the risks associated with this act. At oral argument, the government

pointed to three portions of the plea agreement that it said amounted to a


                                           3
concession that Castellanos was aware of the risks to the individuals in his trunk:

(1) his admission that he “drove . . . with . . . two aliens in the trunk, from which

they could not free themselves . . . [and] had no safety belts or other safety

devices”; (2) his admission that he “dr[ove] fast and recklessly”; and (3) his

commitment to recommending the § 2L1.1(b)(6) adjustment to the court. But the

first point concerns the nature of Castellanos’s conduct, not his mental state.1 And

the last two points amount to an admission that his dangerous driving—not the act

of trunk transport—was reckless and warranted a § 2L1.1(b)(6) adjustment. These

plea agreement excerpts do not establish that Castellanos had the requisite mental

state for the trunk transport conduct to support a § 2L1.1(b)(6) adjustment.

      Because the record does not provide a basis for applying the § 2L1.1(b)(6)

adjustment for conduct other than Castellanos’s flight from law enforcement, it

does not support the additional application of § 3C1.2.

VACATED AND REMANDED.




1
  Our dissenting colleague views Castellanos’s admission in his plea agreement
regarding the conditions of the trunk as establishing that he acted knowingly at the
time of the offense. But the fact that Castellanos later acknowledged the
dangerousness of his conduct does not establish that, at the time of transport, he
was subjectively aware of the danger. We note that, in Rodriguez-Cruz, cited in
the dissent, this court concluded that the defendant was aware of the risks of
transporting people through dangerous mountain terrain because he had made the
same trip 

.

                                           4
                                                                        FILED
United States v. Castellanos, No. 18-50416                               FEB 20 2020
LEE, Circuit Judge, dissenting:                                     MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS

      Alberto Castellanos admitted in his plea agreement that he transported two

aliens “in an unsafe manner.” Specifically, he acknowledged that the aliens were

locked in a trunk, “from which they could not free themselves,” and were

unprotected by “safety belts or other safety devices.” Because this conduct falls

squarely within the ambit of U.S.S.G. § 2L1.1(b)(6), I respectfully dissent.

      At sentencing, the district court was equivocal about its basis for applying

sentencing enhancements under both § 2L1.1(b)(6) and § 3C1.2. While the district

court referenced trunk-transport as a reason for the § 2L1.1(b)(6) enhancement —

which is proper — the sentencing transcript also indicates that the two

enhancements may have been based on two different segments of Castellanos’

flight from Border Patrol. To the extent the district court enhanced the sentence

based on two different segments, I agree with the majority’s determination that this

was error. See United States v. Lopez-Garcia, 

, 970-73 (9th Cir.

2003).

      We may, however, affirm a sentence “on any ground supported by the

record.”   United States v. Nichols, 

, 1122 (9th Cir. 2006).

Application Note No. 3 to § 2L1.1(b)(6) provides that “[r]eckless conduct to which

the adjustment from subsection (b)(6) applies includes . . . transporting persons in

the trunk or engine compartment of a motor vehicle.” U.S.S.G. § 2L1.1, cmt. n.3.
We have previously held that this application note warrants deference, and that the

“conduct listed in the Guidelines notes shows the sorts of risks that meet the §

2L1.1(b)(6) requirement.” See United States v. Bernardo, 

, 986-88

(9th Cir. 2016).

      It is undisputed that Castellanos knowingly transported two aliens in his

trunk in a particularly dangerous manner — without seatbelts or any mechanism of

escape — that goes beyond the basic trunk-transport described in Application Note

No. 3. It self-evidently follows that Castellanos’ conduct involved “a substantial

risk of death or serious bodily injury” under § 2L1.1(b)(6), such that this

sentencing enhancement applies based on the existing record. See United v.

Rodriguez-Cruz, 

, 1059 (9th Cir. 2001) (stating that “reckless” under

§ 2L1.1(b)(6) means “defendant was aware of the risk created by his conduct”). I

would therefore affirm the district court’s sentencing decision on this alterative

ground.