Case - Page LEXSEE 502 F3D 885 Positive As of: Apr 03, 2010...

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LEXSEE 502 F3D 885 Positive As of: Apr 03, 2010 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARLOS TORRES-FLORES, Defendant-Appellant. No. 05-50898 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 502 F.3d 885; 2007 U.S. App. LEXIS 21068 December 5, 2006, Argued and Submitted, Pasadena, California September 4, 2007, Filed SUBSEQUENT HISTORY: As Amended September 14, 2007. PRIOR HISTORY: [**1] Appeal from the United States District Court for the Southern District of California. Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-05-00620-BTM. DISPOSITION: AFFIRMED IN PART, VACATED IN PART AND REMANDED. CASE SUMMARY: PROCEDURAL POSTURE: Defendant was convicted of 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.S. § 1324(a)(2)(B)(iii). The United States District Court for the Southern District of California held that he was eligible for enhancement pursuant to former U.S. Sentencing Guidelines Manual § 2L1.1(b)(5) (2005, recodified 2006). Defendant challenged the conviction and sentence. OVERVIEW: The district court did not err in refusing to give a lesser-included-offense jury instruction where an inspector testified that defendant failed to present the alien for inspection and based on that testimony, a rational jury could not have doubted that the alien was not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry. Moreover, regardless of defendant's subjective reasons for failing to present the alien for inspection, a rational jury could not have found that he lacked the requisite intent while also finding that he knowingly helped the alien evade detection by immigration authorities. However, the district court erred in finding that defendant was eligible for a former U.S. Sentencing Guidelines Manual § 2L1.1(b)(5) (2005, recodified 2006) enhancement for transporting an alien in a manner creating a substantial risk of death or serious bodily injury where the
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incremental danger posed by riding in defendant's hatchback was not so obvious as to render the overall danger substantial without additional evidentiary support. OUTCOME: The conviction was affirmed, but the sentence was vacated. The case was remanded for resentencing. CORE TERMS: seat, passenger, enhancement, alien, compartment, guidelines, sentencing, risk of death, statistics, highway, traffic, felony, metal, serious bodily injury, transportation, transporting, misdemeanor, immigration, sentence, trunk, lesser-included, inspection, knowingly, driving, travel, edges, collision, motor vehicle, recklessly, vehicular LexisNexis(R) Headnotes Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Harboring & Transporting Illegal Aliens > General Overview [HN1] 8 U.S.C.S. § 1324(a)(2) makes it both a felony and a misdemeanor to knowingly or recklessly bring to the United States an alien who has not
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This note was uploaded on 12/09/2011 for the course STATS 221 taught by Professor Nielson during the Fall '10 term at BYU.

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Case - Page LEXSEE 502 F3D 885 Positive As of: Apr 03, 2010...

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