United States of America v. Fernando Martinez-Cuevas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FERNANDO MARTINEZ-CUEVAS,
Defendant - Appellant.
No. 14-50099
D.C. No. 8:13-cr-00116-CJC-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted April 9, 2015 **
Pasadena, California
Before: SILVERMAN and BEA, Circuit Judges and QUIST,*** Senior District
Judge.
FILED
APR 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.

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Fernando Martinez-Cuevas appeals from the district court’s judgment and
challenges his 46-month sentence imposed following his guilty plea to one count
of aiding and assisting an inadmissible alien convicted of an aggravated felony to
enter the United States, in violation of 8 U.S.C. § 1327. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Martinez-Cuevas argues that the district court erred by applying a sentencing
enhancement under U.S.S.G. § 2L1.1(b)(6) for “intentionally or recklessly creating
a substantial risk of death or serious bodily injury to another person.” The
commentary notes for U.S.S.G. § 2L1.1 provide:
Reckless conduct to which the adjustment from subsection (b)(6)
applies includes a wide variety of conduct (e.g., . . . harboring persons
in a crowded, dangerous, or inhumane condition; or guiding persons
through . . . a dangerous or remote geographic area without adequate
food, water, clothing, or protection from the elements).
U.S.S.G. § 2L1.1 cmt. n.5. The undisputed facts in the record show that Martinez-
Cuevas along with others used a panga boat – an open air vessel – to transport
twenty-three passengers at night in the open sea for several hours. The boat lacked
basic safety features such as a fire extinguisher, navigational lights, sound
producing devices, visual distress signals, and other flotation devices such as life
rafts or life-saving rings. In addition, the boat was crowded with fuel cans.

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Accordingly, the district court did not err in applying an enhancement under
U.S.S.G. § 2L1.1(b)(6).
Martinez-Cuevas also argues that 8 U.S.C. § 1327 violates the Due Process
Clause because it is a strict liability crime. In United States v. Flores-Garcia, 198
F.3d 1119, 1123 (9th Cir. 2000), we interpreted 8 U.S.C. § 1327 and concluded
that “[t]he defendant’s knowledge of an alien’s prior felony conviction is not an
element of 8 U.S.C. § 1327; the government need only prove that the defendant
knew that the alien he aided or assisted was inadmissible to the United States.”
Martinez-Cuevas argues that Flores-Garcia was wrongly decided. However, we
are bound by the holding in Flores-Garcia. See Miller v. Gammie, 335 F.3d 889,
899 (9th Cir. 2003) (en banc). Moreover, under the holding of Flores-Garcia, 8
U.S.C. § 1327 contains the mens rea requirement that the defendant have known
“that the alien he aided or assisted was inadmissible to the United States.”
Flores-Garcia, 198 F.3d at 1123. Therefore, 8 U.S.C. § 1327 is not, as Martinez-
Cuevas argues, a strict liability crime. See United States v. Bailey, 444 U.S. 394,
406 n.6 (1980) (explaining that a strict liability crime is a “crime for which
punishment can be imposed without proof of any mens rea at all.” (emphasis
added)); see, e.g., United States v. Cupa-Guillen, 34 F.3d 860, 863 (9th Cir. 1994)
(rejecting defendant’s argument that 8 U.S.C. § 1326(b)(2) is a strict liability crime

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because the statute contains the requirement that the government prove that the
defendant acted with the general intent to re-enter the United States). Accordingly,
we reject Martinez-Cuevas’ challenge to the constitutionality of 8 U.S.C. § 1327.
AFFIRMED.

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