                                                                             FILED
                            NOT FOR PUBLICATION                              MAR 14 2017

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 16-10074

              Plaintiff-Appellee,                 D.C. No. 2:15-CR-00696-DJH

 v.
                                                  MEMORANDUM*
JERRY LOPEZ,

              Defendant-Appellant,


                    Appeal from the United States District Court
                             for the District of Arizona
                    Diane J. Humetewa, District Judge, Presiding

                             Submitted March 8, 2017**

Before:      LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

      Jerry Lopez challenges the 37-month sentence imposed following his guilty-

plea conviction for conspiracy to transport illegal aliens within the United States,

in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (a)(1)(B)(i). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      The government argues that the appeal should be dismissed on the basis of

the appeal waiver contained in the plea agreement. In light of the district court’s

ambiguous statement regarding the scope of the waiver during the plea colloquy,

we decline to dismiss. See Fed. R. Crim. P. 11(b)(1)(N); United States v.

Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995).

      Lopez contends that the district court erred by increasing his offense level

under U.S.S.G. § 2L1.1(b)(6) upon finding that he recklessly created a substantial

risk of death or serious bodily injury in the course of his offense. He argues that

the court was required to find the facts supporting the enhancement by clear and

convincing evidence and such evidence was lacking. The undisputed facts showed

that Lopez transported three individuals in the trunk of his sedan, two individuals

were in the trunk for approximately two hours, and the trunk was cramped with no

fresh or cool air. Two of the individuals stated they feared for their safety, and one

explained she was short of breath. We need not resolve what evidentiary standard

the district court should have applied because, under any standard, these facts were

sufficient to support the enhancement. See U.S.S.G. § 2L1.1 cmt. n.5 (2015)

(“transporting persons in the trunk . . . of a motor vehicle” example of conduct

warranting increase); United States v. Bernardo, 818 F.3d 983, 986 (9th Cir. 2016).

      AFFIRMED.


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