Torres-Flores

Facts

Carlos Torres-Flores drove up to the San Ysidro Port of Entry in an extended-cab pickup on March 23, 2005. Although he told the border inspector he had nothing to declare, the inspector became suspicious and proceeded to investigate. When the inspector opened the driver’s side door, he saw a “big hump” in the carpet behind the back seat. That “hump” turned out to be Fortino Marquez-Cruz, an alien who lacked authorization to enter the United States. Defendant was arrested and charged with bringing an unauthorized alien to the United States without presenting him for inspection at the port of entry, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). He was convicted and sentenced to 30 months imprisonment.

On appeal, defendant challenges the district court’s deci- sion not to give a lesser-included-offense instruction and its decision, at sentencing, that defendant was eligible for an enhancement pursuant to U.S.S.G. § 2L1.1(b)(5) (2005).2 1 This provision is currently codified at U.S.S.G. § 2L1.1(b)(6) (2006). 2 Defendant also claims that the district court erred in refusing to give an instruction on derivative citizenship. Because the record contains less than a scintilla of…