United States v. Moroyoqui-Alamea

524 F.Supp.3d 1133

UNITED STATES of America, Plaintiff,

v.Angel Alan MOROYOQUI-ALAMEA, Defendant.

No. 2:20-cr-02098-WJ-1

United States District Court, D. New Mexico.

Filed March 8, 2021

Matthew Ramirez, United States Attorney's Office District of New Mexico, Las Cruces, NM, for Plaintiff.

Marcia J. Milner, Las Cruces, NM, for Defendant.

MEMORANDUM OPINION AND ORDER OVERRULING DEFENDANT'S OBJECTION TO THE PRESENTENCING REPORT

WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court following the hearing on Defendant Angel Moroyoqui-Alamea's objection to the Presentence Investigation Report (the "PSR"), which was overruled at Defendant's sentencing hearing on March 1, 2021. For the reasons discussed in this Memorandum Opinion and Order, the Court finds pursuant to U.S.S.G. § 2L1.1(b)(6) that the recommended three level increase to Defendant's sentencing guideline offense level in the PSR for intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person was correctly applied.

BACKGROUND

On September 28, 2020, the United States filed a complaint charging Defendant with conspiracy to transport, move, and attempt to transport and move an alien within the United States by means of transportation and otherwise in violation of 8 U.S.C. § 1324(a)(1)(v)(I). Doc. 1 at 1. On the day Defendant was arrested, he was driving what the arresting officer described as a heavily-tinted 1990s white Chevrolet pickup truck, "either extended cab or crew cab," near Cotton City, New Mexico. Id. at 2. The officer passed the pickup truck driven by Defendant, who at that time appeared to be the sole occupant of the vehicle. The officer, through his dispatch, requested a registration check on the pickup truck and learned that the license plate was either fraudulent or placed on the wrong vehicle. Id. It was later discovered that the license plate was fraudulent. Id. at 3. The officer initiated a traffic stop and in approaching the pickup truck the officer observed several passengers in the vehicle, some of whom were sitting on the laps of others. Id. at 2. The officer also noticed what appeared to be a moving foot beneath a makeshift plywood bed cover bolted to the back. When he asked Defendant how many other passengers were hidden in the bed of the pickup truck, Defendant responded that he believed there were nine passengers in the bed. Id. at 2. The officer then performed an immigration inspection of the occupants of the bed and cab of the pickup truck. Id. All of the passengers admitted that they were citizens of Mexico in the United States illegally. Id. When other officers arrived, the passengers were told to exit the vehicle. Id. The passengers in the bed of the vehicle had no ability to extricate themselves or even move. Id.

Defendant driver, as well as the passengers, were then taken to Lordsburg Border Patrol Station for immigration processing. Id. When interviewed, Defendant admitted that he knew all of the passengers were illegal immigrants and that there were twenty-one passengers stowed in the pickup truck, twelve in the cab and nine in the bed of the pickup truck. Id. The pickup truck was rated for a maximum of five passengers. Doc. 25 at 1. Defendant further stated that he was not paid, but was instructed by unknown men to deliver the illegal immigrants in exchange for his own unlawful delivery into California. Doc. 1 at 2.

On October 1, 2020, Defendant was ordered detained pending trial. Doc. 7 at 2-3. On November 25, 2020, Defendant admitted to the facts underlying his crime and pled guilty to combining, conspiring, confederating, agreeing, and acting interdependently with other persons whose names are known and unknown to the United States, to transport illegal aliens into the United States in violation of § 1324(a)(1)(v)(I). See Doc. 13; see also Doc. 16.

On December 14, 2020, the PSR was disclosed and it assigned to Defendant a base offense level of 12 under § 2L1.1(a)(3). Three levels were added to Defendant's base offense level under § 2L1.1(b)(2)(A) for transporting 21 illegal immigrants, and an additional three levels were added under § 2L1.1(b)(6) because such transportation "involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person." PSR at 5. Three levels were removed for having a "minimal and minor" role in the conspiracy under U.S.S.G. § 3B1.2, and an additional two levels were removed for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Id. Defendant's total offense level was therefore calculated at 13 and his criminal history category was determined to be in Category I, resulting in an advisory sentencing guideline range of 12 to 18 months incarceration. PSR at 8.

Defendant objects to the three offense levels added for "intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person" under § 2L1.1(b)(6).

DISCUSSION

Defendant argues against the application of § 2L1.1(b)(6) by asserting that there is no evidence that he intentionally or recklessly created a substantial risk of death or serious bodily injury and thus, his offense level should be 10, rather than 13, resulting in a guidelines sentencing range of 6 to 12 months. Doc. 24 at 2. Specifically, Defendant argues that the pickup truck was not modified and that he did not drive recklessly or attempt to flee, and therefore he does not meet the criteria for § 2L1.1(b)(6) for the three level sentencing enhancement to apply. Id. Defendant's position is contrary to the law.

The standard to which the government is bound when attempting to prove the facts supporting a sentencing enhancement is a preponderance of evidence standard, whereby the government must show that the "existence of a fact is more probable than its nonexistence." United States v. Garcia , 635 F.3d 472, 478 (10th Cir. 2011) ("At sentencing, the government must prove facts supporting a sentencing enhancement by a preponderance of the evidence."); Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal. , 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) ; see also United States v. Cox , 505 Fed. Appx. 692, 693 (10th Cir. 2012). The Court's inquiry regarding whether the enhancement applies "essentially equates to a totality of the circumstances test." United States v. Munoz-Tello , 531 F.3d 1174, 1183 (10th Cir. 2008) (citing United States v. Aranda-Flores , 450 F.3d 1141, 1145 (10th Cir. 2006) ).

Section 2L1.1(b)(6) states that an offense involving the intentional or reckless creation of a substantial risk of death or serious bodily injury to another person will warrant an increase to the corresponding offense level by two, but if the resulting offense level is less than level 18, such offense will warrant an increase to level 18 (the "Reckless Endangerment Enhancement" or "enhancement"). § 2L1.1(b)(6). As to Defendant, this results in a three level enhancement. See PSR at 5. The commentary to this enhancement (the "Commentary") states, in relevant part, that the reckless conduct to which the adjustment applies includes a wide variety of behavior such as, inter alia , (1) transporting persons in the trunk or engine compartment of a motor vehicle, (2) carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, or (3) harboring persons in a crowded, dangerous or inhumane condition. U.S.S.G. § 2L1.1, cmt. n.3.

The Court need not address whether the sealed bed of the vehicle constitutes a "trunk" under the Commentary. While its modification (the bolted plywood bed cover) likely satisfies this requirement and disposes of Defendant's argument that the vehicle was not modified, Defendant's conduct clearly satisfies the second and third examples of reckless behavior set forth in the Commentary. The Court therefore turns its analysis to (2) and (3) above.

At the outset, it must be noted that Defendant's argument is entirely based on an incorrect proposition of law. Defendant claims that because he didn't attempt to flee or harm any passengers while transporting them illegally into the United States, his conduct cannot satisfy the Reckless Endangerment Enhancement.¹ Indeed, throughout Defendant's objection, this assertion is the foundation for all of Defendant's claims, and he even begins his argument stating: "In general , U.S.S.G. § 2L1.1(b)(6) applies where the defendant tried to flee, passengers were injured or killed, or the vehicle was modified and safety was compromised." Doc. 24 at 4 (emphasis added). This position has no support in the law and is, in fact, quite contrary to it.² While fleeing from the police or harming passenger aliens may certainly qualify as reckless endangerment under the statute, a lack of this conduct does not preclude § 2L1.1(b)(6) ’s applicability. The question here is very simple: did Defendant carry substantially more passengers than the rated capacity of the vehicle, or did he harbor any aliens in a crowded, dangerous or inhumane condition? U.S.S.G. § 2L1.1, cmt. n.3.

There is no question that Defendant's conduct satisfies these requirements. It is clear from the facts of this case that Defendant transported a total of 21 aliens, 9 in the bed and 12 in the cab of the pickup truck. The pickup truck, more than 20 years old, is rated for a maximum of five passengers, not including the driver. While some courts have held that carrying slightly more passengers than a vehicle's rated capacity does not warrant the reckless endangerment enhancement,³ Defendant here transported over four times the number of passengers for which the vehicle was rated with 12 crammed into the cab and 9 crammed into the bed under a plywood cover. In fact, the Court stated at Defendant's March 1, 2021 sentencing hearing that it would overrule the objection and apply the enhancement if there had been only the 12 illegal aliens in the cab of the pickup truck or...