United States v. Mariano Velasquez-Diaz , 420 F. App'x 858 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11436 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 29, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00539-RAL-TGW-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
MARIANO VELASQUEZ-DIAZ,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 29, 2010)
Before CARNES, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Mariano Velasquez-Diaz appeals his sentence of imprisonment for 30
months for one count of conspiring to transport illegal aliens for financial gain, 8
U.S.C. §§ 1324(a)(1)(A)(v)(I), (B)(1), two counts of transporting illegal aliens for
financial gain, id. §§ 1324(a)(1)(A)(ii), (B)(i), and one count of entering the
United States unlawfully, id. §§ 1325(a)(1), 1329. Velasquez-Diaz challenges the
enhancement of his sentence for reckless endangerment, U.S. Sentencing
Guidelines Manual § 2L1.1(b)(6) (2009), and the admission of hearsay evidence at
his sentencing hearing. We affirm.
Velasquez-Diaz argues that the admission of hearsay violated his right of
confrontation, but he acknowledges that his argument is foreclosed by our
decision in United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005).
We held in Cantellano that the right of confrontation does not extend to sentencing
proceedings. Id. The district court did not err by admitting hearsay evidence
during Velasquez-Diaz’s sentencing proceeding.
Velasquez-Diaz also argues that the evidence did not support an
enhancement for reckless endangerment, but we disagree. A district court may
enhance a sentence by two levels if the defendant created, either intentionally or
recklessly, a substantial risk of death or serious bodily injury to an alien whom he
smuggled or transported. United States v. Caraballo, 595 F.3d 1214, 1230 (11th
Cir. 2010). The district court found that Velasquez-Diaz endangered aliens who
paid him to transport them from Arizona to Florida, and we may not disturb that
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finding of fact unless we are “left with a definite and firm conviction that a
mistake has been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134,
1136 (11th Cir. 2004). The record establishes that Velasquez-Diaz instructed his
cohorts to engage the child safety locks in vans to ensure that none of the illegal
aliens escaped the vans without paying for their transportation, and those vans
were overloaded to the extent that aliens were forced to sit in the floorboard and
on unsecured objects in the cargo area. These conditions would have made it
difficult for the illegal aliens to extricate themselves or avoid injury in the event of
an accident. We cannot say that the district court clearly erred.
We AFFIRM Velasquez-Diaz’s sentence.
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