United States v. Emiliano Cruz-Ventura
Opinion
Opinion
Fernandez, J.
Emiliano Cruz-Ventura (Cruz) appeals the sentence imposed by the district court after he pleaded guilty to one count of transporting illegal aliens in violation of 8 U.S.C. § 1324 (a)(1)(B). The district court added two points to Cruz’s offense level on account of a previous conviction related to alien smuggling. It then imposed a sentence that departed upward from the guidelines range by 12 months. We vacate and remand for resentencing.
BACKGROUND
On May 15, 1991, Cruz and an associate, Juan Bautista Zurita-Solano (Zurita), attempted to smuggle four illegal aliens past the immigration checkpoint near San Clem-ente, California. Cruz had agreed to transport the aliens to Los Angeles for a smuggler identified only as “El Tortuga.” He was to be paid $100 for his efforts.
•As his 1981 Buick Le Sabre approached the checkpoint, Cruz, who was driving, and Zurita held up their immigration cards. The Border Patrol agent recognized this as a common ploy among alien smugglers and noticed that Zurita’s hand was shaking. The agent ordered Cruz to proceed to the secondary inspection station. At first Cruz appeared to cooperate, but then he accelerated out of the checkpoint.