United States v. Hector Marquez Leon , 310 F. App'x 343 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13791 FEBRUARY 6, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 08-10003-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR MARQUEZ LEON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 6, 2009)
Before BIRCH, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Hector Marquez Leon appeals his sentence of 36 months of imprisonment
for conspiracy to smuggle aliens. 8 U.S.C. § 1324(a)(1)(A)(v)(I). Leon argues
that the district court erred when it enhanced his sentence for reckless
endangerment during flight based on the conduct of his codefendant. The
government agrees that the district court erred. We vacate and remand for
resentencing.
We review de novo the application of the reckless endangerment
enhancement to a sentence and review findings of fact related to that enhancement
for clear error. United States v. Cook, 181 F.3d 1232, 1233 (11th Cir. 1999). A
district court may enhance a sentence by two levels if the defendant created
recklessly a substantial risk of death or bodily injury to another person while
fleeing from law enforcement. United States Sentencing Guidelines § 3C1.2 (Nov.
1992). To apply the enhancement, “the district court ‘must make a specific
finding, based on the record before it, that the defendant actively caused or
procured the reckless behavior at issue.’” Cook, 181 F.3d at 1236 (quoting United
States v. Conley, 131 F.3d 1387, 1390 (10th Cir. 1997)).
The district court erred by applying the enhancement for reckless
endangerment. Leon urged his codefendant to stop the boat and surrender to the
authorities as his codefendant threatened harm to the Coast Guard cutter. Leon is
not accountable for the wrongful conduct of his codefendant. See U.S.S.G. §
2
3C1.2 cmt. n.5; Cook, 181 F.3d at 1235–36. We reverse and remand for the
district court to recalculate Leon’s advisory guideline range without the
enhancement for reckless endangerment.
We vacate Leon’s sentence and remand for further proceedings.
VACATED and REMANDED.
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