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Case Name:
Case Number: Date Filed: 
99-50688 03/15/01 



                                                     No. 99-50688
                                                     D.C. No.
v.                                                    CR-98-03346-NAJ

Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding

Argued and Submitted
August 10, 2000--Pasadena, California

Filed March 15, 2001

Before: Robert Boochever, Stephen S. Trott, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Boochever

Janice M. Deaton, San Diego, California, for the defendant-

Michael P. Skerlos, Assistant United States Attorney, Crimi-
nal Division, San Diego, California, for the plaintiff-appellee.

BOOCHEVER, Circuit Judge:

Antonio Herrera-Rojas pled guilty to bringing an illegal
alien into the United States for commercial gain. He appeals
the district court's sentence, claiming that the court failed to
rule on his objections to the presentence report. He also
claims that the court erred in enhancing his sentence for inten-

tionally or recklessly creating a substantial risk of death or
serious bodily injury to the aliens, and for the death of one of


On November 8, 1998, Border Patrol agents in the area
near Pine Valley, California, responded to a sensor activation
and followed the footsteps of a number of people heading
toward Interstate 8. After an hour and fifteen minutes, the
agents discovered six people lying in the brush at the side of
the highway. Antonio Herrera-Rojas was one of the six.

The aliens were arrested and taken to the Border Patrol
Checkpoint. At the checkpoint, Herrera-Rojas told the agents
that one member of the group, Adrian Rogel Jaimes, was left
behind on the trail when he became too weak to continue with
them. Herrera-Rojas led them to Jaimes, who was dead from
exposure. The weather was windy and cold, with temperatures
in the low thirties, and some rain.

In statements after his arrest, Herrera-Rojas admitted that
he had guided the group of aliens. He further stated that he
had been smuggling undocumented aliens for three months,
and was guiding the group for financial gain.

An indictment charged Herrera-Rojas with five counts of
bringing in an illegal alien for financial gain in violation of 8
U.S.C. S 1324(a)(2)(B)(ii). Herrera-Rojas pled guilty to one
count on February 8, 1999.

The government submitted a presentence report. Herrera-
Rojas filed objections to it. At a sentencing hearing on Sep-
tember 28, 1999, the district court calculated the sentence as

      BASE OFFENSE LEVEL (under U.S.S.G.
       S 2L1.1, Smuggling, Transporting or Harboring

      an Illegal Alien")                               12
       Six to 24 aliens involved, U.S.S.G.
      S 2L1.1(b)(2)(A)                                 +3
       Intentionally or recklessly creating a sub-
      stantial risk of death or serious bodily injury
      to another person, U.S.S.G. S 2L1.1(b)(5)        18
       Death of another person, U.S.S.G.
      S 2L1.1(b)(6)                                    +8
      ADJUSTED OFFENSE LEVEL:                          26
      ACCEPTANCE OF RESPONSIBILITY:                    -3
      TOTAL OFFENSE LEVEL:                             23

Because Herrera-Rojas had no criminal history, the guide-
line range was 46-57 months. The district court sentenced him
at the low end, ordering a 46-month imprisonment.

I. Objections to the presentence report

Herrera-Rojas filed objections to the presentence report
("PSR"), disputing the following factual descriptions of his
role in the death of Adrian Rogel Jaimes.

The PSR's statement that he pressured the aliens to hurry.
The PSR stated that "[s]everal of the material witnesses indi-
cated that Herrera would pressure them to hurry because they
were running late." Herrera-Rojas objected that this statement
was false, and that in fact the witnesses (the other aliens)
stated that they had frequently stopped to wait out the rain and
the wind on the journey.

The case agent's statements. Herrera-Rojas disagreed with
the case agent's statement that Jaimes begged not to be left
alone and that Herrera-Rojas told the group to adhere to a pre-
determined schedule.

Acceptance of responsibility. Herrera-Rojas disagreed with
the PSR's statement that he did not admit to the probation

officer that he was the guide for the group. (The PSR recom-
mended that he not be granted a downward adjustment for
acceptance of responsibility.)

The probation officer's analysis. Herrera-Rojas objected to
the probation officer's conclusion that he had exposed the
aliens to extreme weather conditions, resulting in their suffer-
ing from the extreme cold and the death of one; that he could
not have cared for his pregnant common-law wife, as he left
her alone in Tijuana with no money; that he had been repeat-
edly arrested for illegal entry, and had connections with sev-
eral known smugglers; and that the "traumatization" of the
fourteen-year-old nephew of the deceased, who had been with
his uncle on the trip and was arrested and detained, was
Herrera-Rojas' responsibility. Herrera-Rojas called these con-
clusions "argumentative and exaggerated."

The sentence. Herrera-Rojas also objected to the 78-month
sentence recommended by the PSR.

[1] Federal Rule of Criminal Procedure 32(c)(1) provides,
in relevant part:

      at the sentencing hearing the court . . . must rule on
      any unresolved objections to the presentence report
      . . . . For each matter controverted, the court must
      make either a finding on the allegation or a determi-
      nation that no finding is necessary because the con-
      troverted matter will not be taken into account in, or
      will not affect, sentencing.

[2] " `If the district court fails to make the required Rule 32
findings or determinations at the time of sentencing, the sen-
tence must be vacated and the defendant resentenced.' "
United States v. Gutierrez-Hernandez, 94 F.3d 582, 584 (9th
Cir. 1996) (internal alterations omitted) (quoting United
States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.
1990) (en banc)). "Our precedent requires strict compliance

with Rule 32." United States v. Houston, 217 F.3d 1204, 1207
(9th Cir. 2000) (quotation marks omitted). This court reviews
de novo the district court's compliance with Rule 32. See
United States v. Karterman, 60 F.3d 567, 583 (9th Cir. 1995).

[3] The district court did not explicitly rule on any of the
objections, nor state that the controverted issues would not be
taken into account at sentencing. The court simply made
"findings" regarding the numerical offense level, the adjust-
ments, and acceptance of responsibility. The court did not
mention the PSR except to make it part of the record, did not
adopt its reasoning, and did not mention the objections filed
by Herrera-Rojas at all. The court, like the prosecutor, "dem-
onstrated no recognition that the fact[s were ] in dispute."
Houston, 217 F.3d at 1207. Because we require strict compli-
ance with Rule 32, and because "it is impossible from our
vantage point to glean whether . . . the disputed issues were
resolved," id., remand for resentencing is necessary.

[4] The government argues, however, that because no "un-
resolved" issues remained at the time of the hearing, there
were no controverted matters requiring findings. But Herrera-
Rojas' objections did controvert the account given by the PSR
of his behavior during the journey, particularly at the moment
that Jaimes was left behind. Those are factual disputes the
court neither resolved nor indicated were irrelevant to its deci-
sion. Although Herrera-Rojas' counsel did acknowledge that
Herrera-Rojas attempted to "push them on out of concern for
their safety and survival," the PSR stated that he hurried the
aliens because they were running late, left Jaimes alone sim-
ply to adhere to a schedule, refused to help the group find INS
agents to help Jaimes, and instructed them to continue on.

[5] Intent or recklessness is required to enhance Herrera-
Rojas' sentence for creating a risk of death or serious bodily
injury under U.S. Sentencing Guidelines 2L1.1(b)(5), and the
accuracy of the PSR's description of Herrera-Rojas' behavior
is relevant to determining Herrera-Rojas' intent. Under Rule

32, the court must make an explicit "determination that no
finding is necessary." Otherwise "we are left guessing
whether the district court recognized, contemplated, and
resolved the . . . objection." Houston, 217 F.3d at 1209.

[6] We therefore vacate Herrera-Rojas' sentence and
remand for resentencing. The district court shall explicitly
consider the objections to the PSR and state whether the
objections are relevant to its imposition of the sentence.

II. Application of U.S.S.G. S 2L1.1(b)(5) and (b)(6)

A. Standard of proof

[7] Herrera-Rojas argues that the district court should have
employed a higher standard of proof than a preponderance of
the evidence in determining that he "intentionally created this
situation." " `[W]hen a sentencing factor has an extremely
disproportionate effect on the sentence relative to the offense
of conviction,' the government may have to satisfy a`clear
and convincing' standard." United States v. Hopper, 177 F.3d
824, 833 (9th Cir. 1999) (quoting United States v. Restrepo,
946 F.2d 654, 659 (9th Cir. 1991) (en banc)), cert. denied,
120 S. Ct. 1179 (2000). In Hopper, a sentencing factor called
for a seven-level adjustment resulting in a sentencing range of
63-78 months rather than 24-30 months. We concluded that
a potential increase of 48 months had a disproportionate
effect, given the relative shortness of the original range. See
Hopper, 177 F.3d at 833. Subsequently, we have employed a
case-by-case analysis in determining whether an increase is
disproportionate. See United States v. Valensia , 222 F.3d
1173, 1182 (9th Cir. 2001) (listing cases and factors consid-
ered in each), vacated, _______ U.S. _______, 2001 WL 208719 (U.S.
Mar. 5, 2001) (No. 00-6808).

[8] As explained below, Herrera-Rojas' intent was relevant
only to the three-level increase under U.S.S.G.S 2L1.1(b)(5).
Without that three-level increase, the sentencing range would

have been 33-41 months rather than 46-57 months. Herrera-
Rojas' 46-month sentence, at the bottom end of the higher
range, was increased by thirteen months from 33 months, the
bottom of the lower range. A thirteen-month increase is not
"extremely disproportionate" to a 33-month sentence, and the
district court did not err in using the preponderance of the evi-
dence standard. See Valensia, 222 F.3d at 1182 (sentence
enhancement that more than doubles the original sentence has
been found disproportionate if original sentence was rela-
tively short).

B. Other objections

[9] First, Herrera-Rojas argues that his sentence was
improperly enhanced for recklessly or intentionally creating a
risk of serious bodily harm or death, because he was in the
same situation as the other aliens he transported. But U.S.S.G.
S 2L1.1(b)(5) provides for an increase "[i]f the offense
involved intentionally or recklessly creating a substantial risk
of death or serious bodily injury to another person." (empha-
sis added). On the face of the Guidelines section, it is the risk
to others that justifies the increase. Whether the defendant
himself engages in risky behavior is irrelevant. Further,
Herrera-Rojas did not argue this issue in the district court.

Second, Herrera-Rojas argues that U.S.S.G. 2L1.1(b)(6)
requires intent. The section states: "If any person died or sus-
tained bodily injury, increase the offense level according to
the seriousness of the injury." A death requires an eight-level
increase. Id. at (b)(6)(4).

[10] We reject this argument. Section (b)(5), immediately
preceding S (b)(6), specifies that intent or recklessness is
required to hold a defendant responsible for creating the risk
of death. Section (b)(6)(4) states simply that if death results,
an increase is required. The failure to specify that intent is
required, immediately following a section that specifies

intent, is a clear indication that no intent is necessary for an
increase under S (b)(6).

[11] Third and finally, Herrera-Rojas claims that the court
could not apply both SS (b)(5) and (b)(6), because the creation
of the risk of death penalized by S (b)(5) is a necessary ele-
ment of the occurrence of death as penalized byS (b)(6), and
so to apply both is "double counting" for the same conduct.
Impermissible double counting "occurs where one part of the
Guidelines is applied to increase a defendant's punishment on
account of a kind of harm that has already been fully
accounted for by the application of another part of the Guide-
lines." United States v. Archdale, 229 F.3d 861, 869 (9th Cir.
2000) (quotation marks omitted). The death of Jaimes was not
fully accounted for by the application of the guideline punish-
ing the creation of a mere risk of serious bodily injury or

[12] Further, it is double-counting when "the same conduct
on the part of the defendant is used to support separate
increases under separate enhancement provisions which nec-
essarily overlap, are indistinct, and serve identical purposes."
United States v. Fisher, 132 F.3d 1327, 1329 (10th Cir. 1997)
(emphasis added) (quotation marks omitted). These sections,
however, do not overlap, are distinct, and serve different pur-
poses. Section (b)(5) provides for an increase for the defen-
dant's intentional or reckless conduct, with no consideration
of the outcome; it does not matter whether an alien was actu-
ally harmed by the risk of serious bodily injury or death. Sec-
tion (b)(6) provides for an increase for the outcome (the actual
harm caused) of alien smuggling, with no consideration of the
defendant's intentional or reckless conduct.1 It is not double
counting to impose two increases based on the same conduct
when "one increase focuses solely on the defendant's conduct
1 We assume, however, that forS (b)(6) to apply, the relevant death or
injury must be causally connected to dangerous conditions created by the
unlawful conduct, as it was in this case.

and the other increase focuses on the nature and degree of
harm caused by the defendant's conduct." United States v.
Perkins, 89 F.3d 303, 310 (6th Cir. 1996); see United States
v. Ledford, 218 F.3d 684, 691 (7th Cir. 2000) (proper to
impose bodily injury enhancement in addition to enhancement
for "otherwise using" firearm; one section focuses on con-
duct, use of firearm without regard to injury; other focuses on
outcome of use, resulting injury); Fisher, 132 F.3d at 1329
(no double-counting to enhance sentence for physical restraint
of victim and for resulting injury, when victim "was physi-
cally restrained with the gun and . . . separately or in the pro-
cess, he suffered bodily injury").


We vacate the sentence and remand for resentencing. The
district court shall explicitly address and resolve Herrera-
Rojas' objections to the PSR and state whether the objections
are relevant to the sentence the court imposes.


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