Opinion
No. 12-10221 D.C. No. 4:11-cr-02286-CKJ
06-20-2013
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSE RAMIREZ, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Jesse Ramirez appeals from the district court's judgment and challenges the 30-month sentence imposed following his jury-trial conviction for conspiracy to transport an illegal alien for profit, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), (a)(1)(A)(ii), and (a)(1)(B)(i); and transportation of an illegal alien while placing in jeopardy the life of any person, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Ramirez contends that the district court erred in imposing an enhancement under U.S.S.G. § 2L1.1(b)(6) because his conduct was insufficiently dangerous to trigger that enhancement. The district court did not err because the record reflects that Ramirez's means of travel "exacerbate[d] the likelihood of an accident." United States v. Torres-Flores, 502 F.3d 885, 890 (9th Cir. 2007).
Ramirez also urges that the district court should have applied an enhancement under U.S.S.G. § 3C1.2 instead of section 2L1.1(b)(6), or that the interaction between these two enhancements is so ambiguous that the rule of lenity favors applying section 3C1.2. Because the Guidelines' application notes specifically contemplate the application of section 2L1.1(b)(6) to a defendant who flees from law enforcement as Ramirez did, this argument fails. See U.S.S.G. § 2L1.1 cmt. n.5; United States v. Gonzalez-Mendez, 150 F.3d 1058, 1061 (9th Cir. 1998) (declining to apply rule of lenity where application note to Guideline was unambiguous).
Finally, Ramirez argues that the section 2L1.1(b)(6) enhancement had a disproportionate effect on his sentence. Though it resulted in a greater sentence, the impact of section 2L1.1(b)(6) was not disproportionate.
AFFIRMED.