United States v. Edgar Rivera

MEMORANDUM

Edgar Juan Rivera appeals from the 41-month sentence imposed following his guilty-plea conviction for transportation of illegal aliens and aiding and abetting, in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii), (v)(II). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The government contends that this appeal should be dismissed in light of the appeal waiver set forth in Rivera’s plea agreement. We decline to reach the issue of whether this appeal falls within the scope of the appeal waiver and instead affirm on the merits. See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.2007) (en banc).

Rivera first contends that the district court erred when it increased his base offense level to 18 pursuant to U.S.S.G. § 2Ll.l(b)(6) because the offense involved a substantial risk of death or serious bodily injury. Rivera contends that the district court instead should have applied a two-level enhancement for reckless endangerment during flight pursuant to U.S.S.G. § 3C1.2, which would have resulted in a base offense level of 14. The district court did not err because the Guidelines specifically cite “transporting persons in the trunk ... of a motor vehicle”…