                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              June 24, 2008
                             No. 08-10002                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 07-10022-CR-KMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,


                                  versus


WALDO RODRIGUEZ-GARCIA,

                                                         Defendant-Appellant.


                       ________________________

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

                              (June 24, 2008)


Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Waldo Rodriguez-Garcia appeals his 37-month sentence imposed for

encouraging aliens to enter the United States. He asserts the district court

committed impermissible double counting by enhancing his sentence two levels

under U.S.S.G. § 3C1.2 after enhancing his sentence two levels under U.S.S.G.

§ 2L1.1(b)(6).

      The standard of review for a claim of double counting is de novo. United

States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th Cir. 1999). “Impermissible

double counting occurs only when one part of the Guidelines is applied to increase

a defendant's punishment on account of a kind of harm that has already been fully

accounted for by application of another part of the Guidelines.” Id. at 1309

(quotations omitted). It is presumed the Sentencing Commission intended to apply

separate Guidelines sections cumulatively unless there are specific directions

otherwise. United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995).

      In relevant part, under U.S.S.G. § 2L1.1(b)(6), a defendant receives a two-

level enhancement if the offense conduct recklessly creates a risk of serious bodily

injury to another person. Under U.S.S.G. § 3C1.2, a defendant receives a two-level

enhancement if flight from law enforcement recklessly creates a serious risk of

bodily injury to another person. If conduct justifying enhancement under

U.S.S.G. § 2L1.1(b)(6) is solely related to fleeing from law enforcement, then



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U.S.S.G. § 3C1.2 should not be applied. U.S.S.G. § 2L1.1, comment. (n.5). In

parallel, enhancement under U.S.S.G. § 3C1.2 should not be applied where “the

offense guideline in Chapter Two, or another adjustment in Chapter Three, results

in an equivalent or greater increase in offense level solely on the basis of the same

conduct.” U.S.S.G. § 3C1.2, comment. (n.1).

      When acts of reckless conduct are temporally and spatially separated,

however, enhancement based on separate Guidelines provisions is permissible.

Matos-Rodriguez, 188 F.3d at 1312. In Matos-Rodriguez, the defendant was in his

vehicle when approached and told to stop by a Secret Service agent. Instead of

complying, the defendant accelerated toward the agent. Police pursued the

defendant’s vehicle. During the pursuit, the defendant drove recklessly, including

running stop signs, driving against oncoming traffic, and driving more than double

the speed limit. Id. at 1302.

      In computing the Guidelines range, Matos-Rodriguez’s sentence was

enhanced under U.S.S.G. § 3A1.2(b) (official victim) and additionally under

U.S.S.G. § 3C1.2 (reckless endangerment during flight). Id. at 1303. The

defendant asserted that enhancement under both provisions impermissibly counted

his reckless conduct twice. Id. at 1309. We noted the assault on the agent was

distinct in time and space from the high speed chase, and the defendant’s conduct



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at issue “was not a single, uninterrupted event.” Id. at 1312. Because there were

really two distinct acts of reckless conduct, we held “[t]he enhancements were not

levied solely on the basis of the same conduct,” and affirmed the sentence

imposed. Id. (quotations omitted).

      Rodriguez-Garcia’s claim the district court erred by double counting his

reckless conduct to justify two distinct enhancements is without merit because the

facts of this case show two distinct moments of reckless conduct leading to two

distinct risks of serious bodily injury. First, Rodriguez-Garcia overloaded his

vessel with Cuban aliens, supporting an enhancement under U.S.S.G.

§ 2L1.1(b)(b). Second, Rodriguez-Garcia fled the Coast Guard, supporting an

enhancement under U.S.S.G. § 3C1.2. The two instances of reckless conduct are

divided in time by the initial intervention by the Coast Guard. The two instances

of reckless conduct are also divided in space by the distance from Havana, where

Rodriguez-Garcia loaded his vessel, and 20 miles south of Florida, where the Coast

Guard ordered Rodriguez-Garcia to heave to his vessel. Thus, the district court did

not commit impermissible double counting because the two acts of reckless

conduct were distinct in time and space. Accordingly, we affirm Rodriguez-

Garcia’s sentence.

      AFFIRMED.



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