                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1956
                                    ___________

United States of America,                  *
                                           *
               Appellee,                   *   Appeal from the United States
                                           *   District Court for the
      v.                                   *   District of Nebraska.
                                           *
Pedro Ortiz,                               *   [TO BE PUBLISHED]
                                           *
               Appellant.                  *

                                    ___________

                            Submitted: March 1, 2001
                                Filed: March 6, 2001
                                    ___________

Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

       In September 1999, Pedro Ortiz was driving a van equipped to accommodate
fourteen passengers, but which held twenty-three illegal aliens. A rear tire blew out
and the van overturned. Most of the passengers were injured, including a child who
was transported by life-flight helicopter. Ortiz later pleaded guilty to transporting an
illegal alien for commercial advantage and private financial gain, in violation of 8
U.S.C. § 1324(a)(1)(A)(ii) and (B)(i). The district court1 sentenced Ortiz to forty-one
months imprisonment and three years supervised release.

       On appeal, Ortiz argues that the court clearly erred by increasing his offense
level for intentionally or recklessly creating a substantial risk of death or serious bodily
injury, see U.S.S.G. § 2L1.1(b)(5), by not giving him a mitigating-role reduction, see
U.S.S.G. § 3B1.2, and by granting only a two-level, as opposed to a three-level,
acceptance-of-responsibility reduction, see U.S.S.G. § 3E1.1.

       Having carefully reviewed the record and the parties’ briefs, we conclude the
district court did not clearly err. See United States v. Webb, 214 F.3d 962, 964 (8th
Cir. 2000) (standard of review). First, Ortiz conceded that there were not enough
seatbelts in the van. See U.S.S.G. § 2L1.1, comment. (n.6) (reckless conduct to which
subsection (b)(5) applies includes wide variety of conduct, such as carrying
substantially more passengers than vehicle’s rated capacity or harboring persons in
crowded, dangerous, or inhumane condition); United States v. Hernandez-Guardado,
228 F.3d 1017, 1027-28 (9th Cir. 2000) (§ 2L1.1(b)(5) enhancements upheld where
defendants had driven vans with illegal aliens not strapped into seats with seat belts).
Second, without deciding whether Ortiz played a greater or lesser role in the offense
than his codefendant, we conclude the evidence that both men were responsible for
transporting the passengers and that Ortiz drove the van suggested that he was deeply
involved in the criminal activity. See U.S.S.G. § 3B1.2, comment. (n.3) (“minor
participant means any participant who is less culpable than most other participants, but
whose role could not be described as minimal”); United States v. Jones, 145 F.3d 959,
963 (8th Cir.) (defendant who is concededly less culpable than his codefendants is not
entitled to § 3B1.2 reduction if that defendant was “deeply involved” in criminal acts),
cert. denied, 525 U.S. 988 (1998). Finally, we find no error in the district court’s


       1
        The Honorable William G. Cambridge, United States District Judge for the
District of Nebraska, now retired.
                                            -2-
determination that, as Ortiz had communicated to the government his intention to
proceed to trial after petitioning to plead guilty, he caused the government to prepare
for trial against him, even though he later changed his mind and pleaded guilty. See
U.S.S.G. § 3E1.1(b)(2) (additional 1-level reduction if defendant timely notifies
authorities of his intention to enter plea of guilty, thereby permitting government to
avoid preparing for trial and permitting court to allocate its resources efficiently) &
comment. (n.5) (sentencing judge’s determination of defendant’s acceptance of
responsibility is entitled to great deference on review); cf. United States v. Brown, 148
F.3d 1003, 1007 (8th Cir. 1998) (“The presence of an additional defendant against
whom a case must be proved by no means suggests that the government’s efforts to
prepare that case for trial are somehow duplicative of efforts to prepare similar cases
against co-defendants.”), cert. denied, 525 U.S. 1169 (1999).

      Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -3-
