United States v. Joseph Bernardo
2016 U.S. App. LEXIS 6683
9th Cir.2016Background
- At a border crossing, a dog alerted to Bernardo’s van; officers found a woman hidden in a compartment behind the dashboard, held upright by a heavy-duty cargo strap. The woman said Bernardo agreed to smuggle her into the U.S.
- Bernardo pleaded guilty to bringing in an unlawful alien (8 U.S.C. §1324(a)(2)(B)(iii)) and aiding/abetting (18 U.S.C. §2) with no plea agreement.
- The PSR set a base offense level of 12 under U.S.S.G. §2L1.1(a)(3) and recommended a six-level upward adjustment under §2L1.1(b)(6) for recklessly creating a substantial risk of death or serious bodily injury; also recommended a two-level reduction for acceptance of responsibility.
- The district court found transporting a person strapped inside a dashboard to be “extremely precarious” and applied the §2L1.1(b)(6) enhancement; after a §5K1.1 government motion and a variance, the court sentenced Bernardo to 16 months’ imprisonment and three years supervised release.
- Bernardo appealed the application of the six-level enhancement; the Ninth Circuit affirmed, agreeing that hiding a person in a dashboard is analogous to trunk/engine-compartment concealment and therefore falls within Application Note 5 to §2L1.1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2L1.1(b)(6) enhancement applies | Bernardo: dashboard concealment did not substantially increase risk; strap could be released and compartment was not airtight or jagged | Government/District Court: strapping a person in a dashboard is an inhumane, precarious method analogous to trunk/engine-compartment concealment that substantially increases risk | Affirmed — enhancement applies; dashboard concealment analogous to trunk/engine compartment and meets Note 5 criteria |
| Whether Torres‑Flores requires an independent showing beyond Note 5 | Bernardo: Torres‑Flores mandates separate finding that conduct exacerbated accident risk or created risk during accident-free travel | Government: Application Note 5 examples identify the kinds of risks satisfying §2L1.1(b)(6); Torres‑Flores does not add a new superseding requirement | Held — no separate requirement; Note 5 suffices to show substantially increased risk |
| Whether district court’s factual findings were clearly erroneous | Bernardo: specific facts (release lever, roomy compartment) undermine dangerousness finding | Government: those facts do not negate precariousness or increased risk | Held — factual findings were not clearly erroneous |
| Standard of review for Guidelines application | Bernardo: contested application standard (de novo vs. abuse of discretion) | Government: either standard leads to same result here | Held — court did not resolve circuit split; outcome the same under either standard |
Key Cases Cited
- Kimbrough v. United States, 552 U.S. 85 (2007) (Guidelines remain the starting point and initial benchmark for sentencing)
- Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative absent inconsistency)
- United States v. Torres‑Flores, 502 F.3d 885 (9th Cir. 2007) (focus on how transport method increases risk beyond baseline vehicular travel)
- United States v. Dixon, 201 F.3d 1223 (9th Cir. 2000) (transport in hatchback without more does not ordinarily create substantial risk like a locked trunk)
- United States v. Ramirez‑Martinez, 273 F.3d 903 (9th Cir. 2001) (overcrowded transport without seats/seatbelts meets Note 5 and supports enhancement)
- United States v. Miguel, 368 F.3d 1150 (9th Cir. 2004) (distinguishing trunk concealment from less risky modifications)