                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              April 19, 2006
                             No. 05-12653                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 04-14052-CR-KMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ONAS RICHMOND BARR,

                                                         Defendant-Appellant.



                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                             (April 19, 2006)


Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:
      Onas Richmond Barr appeals his sentence imposed after pleading guilty to

knowingly aiding and assisting an alien who has been convicted of an aggravated

felony to enter the United States, in violation of 8 U.S.C. § 1327. Barr asserts the

district court erred in applying a two-level sentence enhancement for recklessly

causing a substantial risk of death or serious bodily injury to another person

pursuant to U.S.S.G. § 2L1.1(b)(5). The district court did not err, and we affirm.

      We review the district court’s finding of fact that there was reckless conduct

creating a substantial risk of death or serious bodily injury for clear error. United

States vs. Rodriguez-Lopez, 363 F.3d 1134, 1136-37 (11th Cir. 2004). For a

factual finding to be clear error, we must, after reviewing all the evidence, have a

definite and firm conviction that a mistake has occurred. United States v. Foster,

155 F.3d 1329, 1331 (11th Cir. 1998).

      When a defendant is convicted of smuggling, transporting, or harboring an

unlawful alien, the Guidelines provide for a two-level enhancement to the

defendant’s total offense level where he intentionally or recklessly created a

substantial risk of death or bodily injury to another person. U.S.S.G.

§ 2L1.1(b)(5). The commentary notes the reckless conduct adjustment applies to a

wide variety of conduct, including “carrying substantially more passengers than the

rated capacity of a motor vehicle or vessel.” U.S.S.G. § 2L1.1, comment. (n.6).



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      The district court applied the enhancement based on an overcrowded means

of transport with no safety equipment. This application falls squarely within the

parameters of the Guidelines commentary that “carrying substantially more

passengers than the rated capacity of a motor vehicle or vessel” can constitute a

situation creating such a risk. Id. We have also favorably noted the decisions of

other Circuits applying this enhancement to defendants transporting aliens in

overcrowded motor vehicles or without seatbelts. Rodriguez-Lopez, 363 F.3d at

1138. Additionally, the conclusion can reasonably be drawn that Barr, who was

the undisputed captain of the vessel, knew piloting an overcrowded boat across

open waters with no safety equipment created a substantial risk for those on board.

The district court’s finding that Barr recklessly created a substantial risk of death

or serious bodily injury to another person was not clearly erroneous.

      AFFIRMED.




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