                                                          [DO NOT PUBLISH]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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