United States v. Fernando Martinez-Cuevas

MEMORANDUM

Fernando Martinez-Cuevas appeals from the district court’s judgment and challenges his 46-month sentence imposed following his guilty plea to one count of aiding and assisting an inadmissible alien convicted of an aggravated felony to enter the United States, in violation of 8 U.S.C. § 1327 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Martinez-Cuevas argues that the district court erred by applying a sentencing enhancement under U.S.S.G. § 2Ll.l(b)(6) for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” The commentary notes for U.S.S.G. § 2L1.1 provide:

U.S.S.G. § 2L1.1 cmt. n. 5. The undisputed facts in the record show that Martinez-Cuevas along with others used a panga boat — an open air vessel — to- transport twenty-three passengers at night in the open sea for several hours. The boat lacked basic safety features such as a fire extinguisher, navigational lights, sound producing devices, visual distress signals, and other flotation devices such as life rafts or life-saving rings. In addition, the boat was crowded with fuel cans. Accordingly, the district court did not err in applying an…