US v. Bernardo, No. 15-50289 (4-13-16)(Ikuta with Clifton and Block, D.J.). This presents a sentencing issue in an alien smuggling case. The guidelines for smuggling has a +6 level enhancement creating a substantial risk of death or serious harm in violation of 2L1.1(b)(6). In the case here, the smuggled alien was a woman strapped inside a compartment behind the vehicle dashboard. The district court applied the +6 enhancement. The defendant argued that strapping was serious, but the woman was not harmed, and emerged from the compartment without injuries. The 9th affirmed the district court. The strapping met the definition and commentary of creating a substantial risk of death or injury.
The decision is here: